Cheque dishonour procedure: affidavit evidence for complainant, cross-examination without fresh chief, and no affidavit right for accused

Affidavit evidence under the cheque dishonour procedure under the Negotiable Instruments Act is the complainant's examination-in-chief, and when the accused seeks summoning under section 145(2), the deponent is to be cross-examined without a fresh oral examination-in-chief. The special procedure in sections 143 to 147 is procedural and applies to pending complaints, as it governs trial and evidence without affecting substantive rights. Section 145(1) confers affidavit evidence only on the complainant; the accused has no corresponding statutory right to give evidence by affidavit, and courts cannot add such a right by interpretation.

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Issues: (i) Whether, on an application under section 145(2) of the Negotiable Instruments Act, 1881, the accused can insist that the complainant or witness who has filed an affidavit must again give oral examination-in-chief before cross-examination; (ii) whether sections 143 to 147 of the Negotiable Instruments Act, 1881 apply to complaints pending when the 2002 amendment came into force; and (iii) whether the accused has a right to give evidence on affidavit under section 145(1) of the Negotiable Instruments Act, 1881.

Issue (i): Whether, on an application under section 145(2) of the Negotiable Instruments Act, 1881, the accused can insist that the complainant or witness who has filed an affidavit must again give oral examination-in-chief before cross-examination.

Analysis: The affidavit filed under section 145(1) operates as the examination-in-chief of the deponent. Section 145(2) enables the Court to summon the deponent for examination as to the facts contained in the affidavit, and when the application is made by the accused, the deponent is to be summoned so that the accused may cross-examine him. Reading a further right to insist on a fresh oral examination-in-chief would defeat the object of the special summary procedure created by sections 143 to 147 and would render section 145(1) nugatory. The scheme of the provision does not require duplication of evidence already placed on affidavit.

Conclusion: The accused has no right to insist on a fresh oral examination-in-chief, and the deponent summoned under section 145(2) is to be cross-examined on the affidavit evidence.

Issue (ii): Whether sections 143 to 147 of the Negotiable Instruments Act, 1881 apply to complaints pending when the 2002 amendment came into force.

Analysis: The provisions introduced by the 2002 amendment are procedural in character. They regulate the mode of trial and evidence without taking away any substantive defence or vested right of the accused. Procedural amendments ordinarily apply to pending proceedings unless a contrary intention appears, and the special scheme created to ensure expeditious disposal of cheque dishonour cases was intended to govern cases already pending when the amendment commenced.

Conclusion: Sections 143 to 147 apply retrospectively to pending complaints.

Issue (iii): Whether the accused has a right to give evidence on affidavit under section 145(1) of the Negotiable Instruments Act, 1881.

Analysis: Section 145(1) expressly confers the facility of affidavit evidence only on the complainant. The omission of the accused is deliberate and cannot be filled by judicial interpretation. The complainant's evidence is ordinarily documentary and suited to affidavit proof, whereas the defence evidence may be of a different character and is not statutorily placed on the same footing. Extending the same right to the accused would amount to adding words to the statute and would be impermissible judicial legislation. The provision in Article 20(3) of the Constitution of India does not justify reading into section 145(1) a right that the Legislature did not confer.

Conclusion: The accused has no right under section 145(1) to give evidence on affidavit.

Final Conclusion: The statutory scheme for cheque dishonour trials is a special, speedy procedure that permits affidavit evidence for the complainant, allows cross-examination of the deponent at the instance of the accused, applies to pending proceedings, and does not extend the complainant's affidavit facility to the accused.

Ratio Decidendi: Where a statute creates a special expeditious procedure and expressly permits affidavit evidence only for one side, courts cannot read into it an equivalent right for the other side or require repetition of examination-in-chief that would defeat the legislative purpose.

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