N. Pushapamala vs S. Muthusamy

K.B.K. Vasuki, J.—The Criminal revision is filed by the accused against the order made in Crl. MP. No. 3434 of 2007 in C.C. No. 126 of 2006 on the file of the Judicial Magistrate No. II Sankari.

The petition is filed by the accused u/s 145(2) of the Negotiable Instrument Act, to permit the evidence in chief of defence side witnesses to be given in the form of affidavit. The trial Court dismissed the petition, by relying upon the learned Single Judge judgment of our High Court in V. Thanaiya v. M. Balasamy Nadar, 2005 (3) R.C.R. (Criminal) 88 : LNIND 2005 BMM 11 : (2005) 1 MLJ (Crl) 324 (Mad) wherein our High Court held that the legislature in its dictum had thought it fit not to treat the complainant and the accused on par in the matter of giving evidence in the form of affidavit, and where the complainant in the complaint under Proviso (2) to Section 145 N.I. Act entitled to adduce evidence on affidavit, the accused cannot claim the similar benefit. However, the learned Single Judge judgment of our High Court in V. Thanaiya v. M. Balasamy Nadar (supra), is not accepted by another learned Single Judgement. Janakumar v. G. Pandiyaraj, and the issue as to whether accused has the right to let in evidence by filing an affidavit u/s 145 of the N.I. Act, was referred before the Division Bench. The Division Bench in the judgment in P. Janakumar Vs. G. Pandiyaraj, , while disposing of the issue has made detailed judicial assessment in this regard and referred to various judgments rendered by Apex Court and High Court Division Bench in 1) KSL and Industries Ltd., (formerly known as Krishna Texport Industries Ltd.) Vs. Mannalal Khandelwal and The State of Maharashtra, 2) Peacock Industries Ltd. v. Budhrani Finance Ltd., 2007 (1) Crimes 271, 3) Shreenath and Another Vs. Rajesh and Others, 4) NEPC Micon Limited and Others Vs. Magma Leasing Limited, 5) M. Pentiah and Others Vs. Muddala Veeramallappa and Others, , 6) Directorate of Enforcement Vs. Deepak Mahajan and another, and 7) Basavaraj R. Patil and Others Vs. State of Karnataka and Others, dealing with very many procedural aspects and was pleased to observe the law laid down in V. Thanaiya v. M Balasamy Nadar, as not correct and was pleased to hold that if Section 145(1) of the Code is to be treated as an indulgence or a privilege granted to the complainant, the right to equality requires the accused also to be given the same privilege or indulgence. Section 145 of Negotiable Instruments Act is introduced to reduce the time taken to complete the trial and the combined reading of Sections 145(1) and (2) would make it clear that the Parliament could not have used the words ''any person giving evidence'' in Section 145(2) if we have to limit the scope of Section 145(1) to mean complainant alone and the chief examination of the complainant and other witnesses including the accused can be furnished in the form of affidavit and any person who gives evidence on affidavit including the accused may be examined by the Court, if it thinks fit and shall be summoned to give his evidence in cross-examination or reexamination, on application by the prosecution or the accused, as the case may be. The Division Bench has further observed that "Section 145(2) refers to any person and this will be meaningless if we were to hold that the complainant and the complainant alone can furnish his evidence on affidavit". 2) ".... Our construction must advance the object without violating the language.... this would be the interpretation that would advance the object of the Amendment Act. 2002".

Thus applying the law laid down by the Division Bench of this Court that the Court shall permit the examination of all the witnesses either on the side of the complainant or the accused to be given in the form of affidavit, the order challenged in this revision is liable to be set aside.

In the result, the criminal revision is ordered by permitting the defence side witnesses to adduce chief-examination in the form of affidavit. As the main case of the year 2007, the trial Court is directed to dispose of the main case as expeditiously as possible not later than three months from the date of receipt of a copy of this order along with records. Consequently, connected miscellaneous petition is closed.