REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 912 OF 2009 (Arising out of SLP (Crl.) No.7487 of 2008)

Radhey Shyam Garg … Appellant

Versus

Naresh Kumar Gupta … Respondent

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Appellant is before us aggrieved by and dissatisfied with a judgment  

and order dated 9.5.2008 passed by a learned Single Judge of the High Court  

of Delhi at New Delhi in Criminal M.C. No.1522 of 2008.

3. Respondent  filed  a  complaint  petition  in  the  Court  of  Chief  

Metropolitan Magistrate, Delhi on or about 7.6.2004 which was marked as  

Criminal Complaint Case No.882/1 of 2004 for commission of an alleged

offence  under  Section  138 of  the  Negotiable  Instruments  Act,  1881 (for  

short, ‘the Act’).  Pre-summoning evidence by the complainant was recorded  

by way of an affidavit.  Cognizance of the offence was taken and summons  

was  directed  to  be  issued  by an  order  dated  9.6.2004.   Post-summoning  

evidence was also adduced by the complainant on 26.3.2007 by way of an  

affidavit.   

4. It  now  appears  that  respondent  examined  himself  and  was  cross-

examined at length.  His cross-examination started 12.9.2008.  It runs into  

nine  typed  pages.   Indisputably,  prior  to  offering  himself  for  cross-

examination, appellant proved his affidavits which were marked as Exhibits  

CW1/A to CW1/1.  A large number of questions were asked to the deponent  

on the contents of the affidavits.

5. It, however, appears that an application purported to be under Section  

145(2) of the Act was filed by the appellant on 7.3.2008 which by reason of  

an  order  dated  14.3.2008  was  dismissed.   Appellant  filed  an  application  

before the High Court purported to be under Section 482 of the Code of  

Criminal Procedure for setting aside the said order.   

By reason of the impugned judgment, the same has been dismissed.

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6. Mr.  Vishal  Aggarwal,  learned  counsel  appearing  on  behalf  of  the  

appellant, would contend that on a plain reading of Section 145 of the Act, it  

would be evident that the same is imperative in character.  By reason of the  

said provision, it was urged, the court has no other option but to examine a  

witness including the complainant who had affirmed an affidavit in support  

of his statement.  Drawing our attention to the provisions of sub-section (2)  

of  Section  296  of  the  Code  of  Criminal  Procedure,  the  learned  counsel  

would urge that the same being in pari materia with Section 145 of the Act,  

the  learned  Trial  Judge  as  also  the  High  Court  must  be  held  to  have  

committed a serious error in passing the impugned judgment.   

7. Respondent who, however, has appeared in person drew our attention  

to some disturbing facts, namely, the signatures of the appellant appearing at  

the end of the verification portion which is at page 39 of the paper book as  

also  his  signatures  appearing  in  the  affidavit  affirmed  in  support  of  the  

application for stay to contend that even with a naked eye, the same would  

appear to be different.  Our attention was furthermore drawn to the fact that  

although  in  the  affidavit  affirmed  by  the  appellant  in  support  of  the  

application  for  stay  is  dated  31.7.2008,  the  same  appears  to  have  been  

drafted on 16.9.2008 and filed on 19.9.2008.  We may, however, notice that  

in our copy, the said application was said to have been drawn on 30.7.2008  

and filed on 31.7.2008.   

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8. Before, however, we advert thereto, we may place on record that the  

respondent herein in his affidavit has stated as under :

“4. That cross-examination of the respondent in  trial  Court  in  complaint  No.882/1  of  2004  (presently numbered as 521/07) had already been  completed on 12th September, 2009 before filing of  the  abovementioned  petition  on  19.09.2008.   A  certified  copy  of  the  cross-examination  of  the  respondent is enclosed-Annexure R-1.

5. That  while  applying  for  stay  this  material  fact  of  respondent’s  examination  already  being  over was not brought to the notice of this Hon’ble  Court  and  was  hidden  from this  Hon’ble  Court.  The petitioner has got opportunity to examine the  respondent and has already availed the same on the  point  sought  to  be  considered  in  Special  Leave  Petition No.7487 of 2008 filed by the petitioner.

6. That the respondent has also been examined  by the counsel of the accused on 16.07.2008 and  30.08.2008 in another  Civil  Suit  No.325/06 filed  by the respondent for the same matter in the Court  of Additional District Judge at Tis Hazari Courts.  A certified copy of the same is enclosed-Annexure  R-2.

7. That  even  petitioner  has  been  examined  partly  in  the  said  Civil  Suit  No.325/06  on  19.02.2008  in  the  Court  of  Additional  District  Judge at Tis Hazari Courts.  A certified copy of the  same is enclosed-Annexure R-3.

8. After 19.02.2008, the appellant had not been  attending the proceedings for more than 6 months  resulting into imposition of costs and closure of his  right  of  cross  examination  on  10.09.2008.   A  certified copy of the same is enclosed – Annexure  R-4.

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9. The  petitioner  has  not  been  presenting  himself  even  after  the  ex  parte  order  in  the  aforesaid  civil  suit  and  seeking  adjournment  on  frivolous grounds.”

9. No rejoinder thereto has been filed by the appellant.   The contents  

thereof even otherwise are matter of record.

10. Evidence  by  way  of  affidavit,  thus,  was  filed  both  in  the  civil  

proceedings  as  also  in  the  criminal  proceedings.   We  have  noticed  

hereinbefore, the cross-examination is also over.  It has not been shown nor  

do we find that the appellant has been prejudiced in any manner whatsoever.  

Section 145 of the Act reads as under :

“145.—Evidence  on  affidavit.—(1)  Notwithstanding anything contained in the Code of  Criminal  Procedure,  1973 (2 of  1974),  the  evidence of the complainant may be given by him  on affidavit and may, subject to all just exceptions  be read in evidence in any enquiry, trial or other  proceeding under the said Code.

(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.”

It  contains  a  non-obstante  clause.   The  provisions  of  the  Code  of  

Criminal Procedure, 1973 are, thus, not attracted.  The Court, subject to just  

exceptions, may allow the complainant to give evidence by way of affidavit.  

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Such an evidence by way of affidavit had been made admissible in evidence  

in any enquiry, trial  or other proceedings under the Code.  Whereas sub-

section (1) of Section 145 uses the term ‘may’, sub-section (2) thereof uses  

the term ‘shall’.  The first part of the aforementioned provision must be read  

with sub-section (1) of Section 145.  It, therefore, merely points out to the  

discretionary power of the court conferred upon it by reason thereof.

The Court, however, has no other option but to summon and examine  

any person who has given evidence on affidavit as to the facts contained  

therein if an application is filed either by the prosecution or the accused.  

Section 145 must be read reasonably.  Section 296 of the Code of Criminal  

Procedure although refers to an evidence of a formal character,  no doubt  

contains a pari materia provision.   

We  may  also  notice  the  relevant  provisions  of  the  Code  of  Civil  

Procedure.

11. Order XIX, Rule 1 of the Code Procedure reads as under :

“1.  Power  to  order  any  point  to  be  proved  by  affidavit—Any  Court  may  at  any  time  for  sufficient  reason order that any particular fact  or  facts  may  be  proved  by  affidavit,  or  that  the  affidavit of any witness may be read at the hearing,  on such conditions as the Court thinks reasonable :

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Provided that  where  it  appears  to  the  Court  that  either party bona fide desires the production of a  witness  for  cross-examination,  and  that  such  witness  can  be  produced,  an  order  shall  not  be  made authorizing the evidence of such witness to  be given by affidavit.”

The relevant portion of Order XVIII Rule 4 reads as under :

“4. Recording of evidence—(1) In every case, the  examination-in-chief  of  a  witness shall  be  on  affidavit and copies thereof shall be supplied to the  opposite  party  by  the  party  who  calls him  for  evidence:

Provided that where documents are filed and the  parties  rely  upon  the  documents,  the  proof  and  admissibility  of  such  documents  which  are  filed  along with affidavit shall be subject to the orders  of the Court.

(2)  The  evidence  (cross-examination  and  re- examination) of the witness in attendance, whose  evidence  (examination-in-chief)  by  affidavit  has  been furnished to the Court shall be taken either by  the Court or by the Commissioner appointed by it:

A Three Judge Bench of this  Court  in  Ameer Trading Corporation  

Ltd. v. Shapoorji Data Processing Ltd. [(2004) 1 SCC 702], held as under :

“13. The  other  sub-rules  of  Rule  4  of  Order  18  provide for other and further procedures as regards  examination of witness.

14. Rule 5 refers to the evidence which is required  to be taken in cases where the appeal is allowed in  contradistinction  with  the  cases  where  appeal  is  

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not allowed as envisaged in Rule 13 of Order 18 of  the  Code  of  Civil  Procedure.  Rule  5,  therefore,  envisages a situation where the court is required to  take down an evidence in the manner  laid down  therein  which  would  mean  that  where  cross- examination or re-examination of the witness is to  take place in the court.

15. The examination  of  a witness would include  evidence-in-chief,  cross-examination  or  re- examination.  Rule  4  of  Order  18  speaks  of  examination-in-chief.  The  unamended  rule  provided for the manner in which “evidence” is to  be taken. Such examination-in-chief of a witness in  every case shall be on affidavit.

16. The aforementioned provision has been made  to curtail the time taken by the court in examining  a witness-in-chief. Sub-rule (2) of Rule 4 of Order  18  of  the  Code  of  Civil  Procedure  provides  for  cross-examination and re-examination of a witness  which  shall  be  taken  by  the  court  or  the  Commissioner appointed by it.

17. We  may  notice  that  Rule  4  of  Order  18  as  amended  with  effect  from  1-7-2002  specifically  provided thereunder that the examination-in-chief  in every case shall be on affidavit. Rule 5 of Order  18  had been  incorporated  even  prior  to  the  said  amendment.”

12. Mr. Aggarwal, however, has drawn our attention to a decision of this  

Court in  State of Punjab v.  Naib Din [(2001) 8 SCC 578], wherein it has  

been held :

“8.  What  is  meant  by  an  evidence  of  a  formal  character?  It  depends upon the facts  of the case.  Quite  often  different  steps  adopted  by  police  

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officers  during  the  investigation  might  relate  to  formalities  prescribed  by  law.  Evidence,  if  necessary on those formalities, should normally be  tendered  by  affidavits  and  not  by  examining  all  such  policemen  in  court.  If  any  party  to  a  lis  wishes to examine the deponent of the affidavit it  is open to him to make an application before the  Court that he requires the deponent to be examined  or  cross-examined  in  Court.  This  is  provided  in  sub-section (2) of Section 296 of the Code. When  any such application is made it is the duty of the  Court  to  call  such  person  to  the  court  for  the  purpose of being examined.”

13. Examination in terms of the provisions of the Indian Evidence Act  

envisages  examination in chief,  cross-examination and re-examination,  as  

would appear from Sections 137 and 138 thereof.  A person whose evidence  

has  been  taken  by  way  of  an  examination  in  chief  by  way  of  affidavit,  

keeping  in  view the  statutory  scheme  noticed  both  in  the  Code of  Civil  

Procedure as also in the Code of Criminal Procedure, there cannot be any  

doubt whatsoever that a person intends to summon a witness who had filed  

his affidavit would be only for the purpose of his cross-examination.  It is,  

however, possible that a party examining his own witnesses including the  

complainant may not affirm an affidavit or would like to examine himself in  

court.  Sub-section (2) of Section 145 as also sub-section (2) of Section 296  

of the Code of Criminal Procedure, in our opinion, should be interpreted in  

that manner.

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14. Our attention has furthermore been drawn to a decision of this Court  

in  Sushil  Kumar Sharma v.  Union of India & Ors. [(2005) 6 SCC 281],  

wherein this Court held as under :

“16. As  observed  in  Maulavi  Hussein  Haji  Abraham  Umarji  v.  State  of  Gujarat,  Unique  Butyle Tube Industries (P) Ltd. v. U.P. Financial  Corpn. and Padma Sundara Rao v. State of T.N.  while  interpreting  a  provision,  the  Court  only  interprets  the  law  and  cannot  legislate  it.  If  a  provision of law is misused and subjected to the  abuse of the process of law, it is for the legislature  to  amend,  modify  or  repeal  it,  if  deemed  necessary.”

There is no dispute with regard to the aforementioned proposition of  

law.  However,  while interpreting a provision,  the Court must be able to  

assign a meaning thereto.  A plain meaning or literal interpretation should  

not lead to absurdity or an anomalous situation.   

The Court therein was dealing with an offence.  The said word used  

having  regard  to  the  contentions  raised  therein  that  Section 498A of  the  

Indian Penal Code was possible to be misused.  It was in the aforementioned  

context, the Court observed :

“12. It is well settled that mere possibility of abuse  of a provision of law does not per se invalidate a  legislation.  It  must  be  presumed,  unless  the  contrary  is  proved,  that  administration  and  application of a particular law would be done “not  

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with  an  evil  eye  and  unequal  hand”.  (See  A.  Thangal  Kunju  Musaliar v.  M.  Venkatichalam  Potti.)

XXX XXX XXX

14. From the decided cases in India as well as in  the United States of America, the principle appears  to  be well  settled that  if  a  statutory  provision is  otherwise intra vires, constitutional and valid, mere  possibility of abuse of power in a given case would  not  make  it  objectionable,  ultra  vires  or  unconstitutional.  In  such  cases,  “action”  and not  the  “section”  may  be  vulnerable.  If  it  is  so,  the  court by upholding the provision of law, may still  set  aside  the  action,  order  or  decision  and  grant  appropriate relief to the person aggrieved.”

The said decision, therefore, in our opinion, has no application at all.

Reliance has also been placed on State of Jharkhand & Anr. v. Govind  

Singh [(2005) 10 SCC 437], wherein it was stated :

“12. It  is  said  that  a  statute  is  an  edict  of  the  legislature.   The  elementary  principle  of  interpreting or construing a statute is to gather the  mens or sentential legis or the legislature.”

The said rule, however, would apply only where the language is clear.

15. If affidavit in terms of the provisions of Section 145 of the Act is to be  

considered to be an evidence, it  is difficult to comprehend as to why the  

court will  ask the deponent of the said affidavit  to examine himself with  

regard to the contents thereof once over again.  He may be cross-examined  

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and upon completion of his evidence, he may be re-examined.  Thus, the  

words  “examine  any  person  giving  evidence  on  affidavit  as  to  the  facts  

contained therein, in the event, the deponent is summoned by the court in  

terms of sub-section (2) of Section 145 of the Act’, in our opinion, would  

mean for the purpose of cross-examination.  The provision seeks to attend a  

salutory purpose.   

The statements of objects and reasons for enacting the said provision,  

inter alia read, inter alia, as under :

“Keeping in view of the recommendations of the  Standing  Committee  on  Finance  and  other  representations,  it  has been decided to bring out,  inter  alia,  the  following  amendments  in  the  Negotiable Instruments Act, 1881, namely:—

(i) to (iii) …

(iv) to  prescribe  procedure  for  dispensing  with  preliminary evidence of the complainant;

(v) …

(vi) to provide for summary trial of the cases under the Act  with a view to speeding up disposal of cases;”

16. The object of enactment of the said provision is for the purpose of  

expedition of the trial.   A criminal trial  even otherwise is  required to be  

expeditiously held.   

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17. We, therefore, do not find any justification for arriving at a finding  

that a witness can again be summoned for his examination in chief in the  

court despite affirming affidavit in that behalf.

18. Respondent  would  however,  submit  that  having  regard  to  the  

provisions of Section 61 of the Code of Criminal Procedure and furthermore  

in view of the fact that a complainant is required to be present throughout  

and,  thus,  unless  exempted,  question  of  summoning  him does  not  arise.  

Section 61 of the Code, however, in our opinion, has no application to the  

facts and circumstances of this case.   

19. We do not find any merit in this appeal.  It is dismissed accordingly.  

However,  keeping  in  view the  fact  that  there  appears  to  be  an  apparent  

dissimilarity in the signatures of the deponent appearing at pages 39 and 61,  

we are of the opinion that there exists a necessity for conducting an enquiry  

in this behalf.  We, therefore, direct the Registrar (Judicial) to conduct an  

enquiry  in  terms of  Section 340 of  the  Code of  Criminal  Procedure  and  

submit a report to this Court.  We, however, make it clear that trial of the  

matter shall go on before the court below.   

20. The  appeal  is  dismissed  with  costs.  Counsel’s  fee  assessed  at  

Rs.25,000/-.   

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……………………………….J. [S.B. Sinha]

..…………………………..…J.  [Dr. Mukundakam Sharma]

New Delhi; May 5, 2009

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