145 2 Appltn. Anil D. HP.
145 2 Appltn. Anil D. HP.
145 2 Appltn. Anil D. HP.
METROPLITAN MAGISTRATE AT
SMALL CAUSES COURT, MUMBAI.
Versus.
[2] The Court may, if it thinks fit, and shall, on the application of the
prosecution or the Accused, summon and examine any person
giving evidence on affidavit as to the facts contained therein.
9. The Accused say that though subsection (1) of section 145 of N.I.
Act enables the complainant to give evidence in the form of
affidavit, the provisions of sub section (2) of section 145 of N.I. Act,
conferred legal right upon the Complainant and the Accused, to
summon and examine the deponent of affidavit, for the purpose of
recording his examination with regard to the facts stated in the
affidavit.
10. The Accused say that the true spirit and legislative intention of the
provisions of section 145(2) of N.I. Act came up for consideration
before this Hon’ble Court in Criminal W.P.No.26/2004, wherein the
Learned Single Judge of this Hon’ble Court (Coram: His Lordship
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“Be that as it may. Sub section (1) of 145 of N.I. Act makes
it obligatory on the courts to summon and examine the
complainant on the application made by the Accused. In
view thereof, petition is allowed. Learned J.M.F.C., Pune, is
directed to summon the complainant and record his
examination in chief and thereafter permit the Accused-
petitioner to cross examine the complainant.”
11. The Accused say that as per the provisions of sub section (2) of
section 145 of N.I. Act, the complainant as well as Accused was
entitled in law to request the court for summoning and examining
the deponent of an affidavit, with regard to the facts stated by the
deponent in his affidavit.
12. The Accused say that the process of recording of evidence and the
matters pertaining to the relevancy and admissibility of the
evidence is governed only by the provisions of Indian Evidence Act.
The Code of Criminal Procedure merely makes regulatory
provisions for recording such evidence in a criminal trial. Though,
the provisions of section 145 of Negotiable Instruments Act
commence with Non obstente clause, the said provision cannot by
any stretch of imagination, affect or supervene, the general
provisions appearing in the Indian Evidence Act. The Accused say
that the non obstente clause appearing in the beginning of section
145 of N.I. Act at the most can eclipse only the provisions of Code
of Criminal Procedure but does not affect any of the provisions of
Indian Evidence Act.
13. The Accused further submit that the issues that are raised in the
present application u/s 145(2) were similarly raised before the
Hon’ble Bombay High Court in Cr. Application No 3638 of 2005 in
the case of Harish Chandra Biyani Vs. Stock Holding Corp. of India
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14. That against the said Order of the Hon’ble Bombay High Court, the
Applicant therein has preferred an SLP. No. 6302 of 2005 in the
Hon’ble Supreme Court and the Hon’ble Supreme Court has
disposed of the said matter since the Complainant in that case
conceded for leading oral evidence.
15. After the passing of the order by the Hon’ble Supreme Court, His
Lordship Justice D. B. Bhosale of the Hon’ble Bombay High Court
once again reconsidered the provisions of section 145[2] N. I. and
dismissed a bunch/group of 25 petitions in the case of Peacock
Industries. Against the said order passed by His Lordship Justice D.
B. Bhosale one of the parties namely Mandvi Coop Bank Ltd. have
filed SLP No. 3915/06 in the Hon’ble Supreme Court and operation
of the order of the Hon’ble Bombay High Court has been stayed.
Copy of the order passed by the Hon’ble Supreme Court in SLP
No. 3915/06 is at Exhibit ‘A’ hereto. The Hon’ble Supreme Court
has in yet another SLP [Cr.] No. 4760/06 in the case of Lionnaira
Holdings and Investments Ltd. and Others versus Jiji Marshal
Trading P. Ltd. arising out of one of the 25 petitions decided by the
Hon’ble Bombay High in the matter of Peacock industries has on
19.10.06 stayed the further proceedings in the matter. Hereto
annexed and marked as Exhibit ‘B’ is the copy of the order passed
in SLP [Cr.] No. 4760/06. The Hon’ble Supreme Court has in yet
another CRL. MP No. 942/2007 in the case of Shirish Welling V/s.
State of Maharashtra and Anr. arising out of one of the 25 petitions
decided by the Hon’ble Bombay High in the matter of Peacock
industries has on 19.2.2007 stayed the further proceedings in the
matter. Hereto annexed and marked as Exhibit ‘C’ is the copy of the
order passed in CRL. MP No. 942/2007.
16. In addition to the said orders passed by the Hon’ble Supreme Court
as annexed with the Application U/s. 145 [2] N. I. Act filed by the
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17. The accused therefore says that it is just, necessary and otherwise
expedient in the interest of justice that the further hearing and
arguments on application u/s. 145 (2) be adjourned suitably,
awaiting the decision of the Hon’ble Supreme High Court in order
that the multiplicity of further application / litigation can be avoided.
And for this act of kindness, the accused shall as ever duty bound pray.
Manohar H. Ramsinghani,
Advocate for Accused.