Affidavit evidence in cheque dishonour cases: cross-examination allowed, fresh oral examination-in-chief excluded, and amendments apply to pending complaints.

Section 145 of the Negotiable Instruments Act permits affidavit evidence in cheque dishonour proceedings and is aimed at expeditious trial management. The provision was read as allowing the deponent to be summoned for cross-examination and re-examination, but not to require a fresh oral examination-in-chief after affidavit evidence is filed. The amended Section 145 was treated as procedural and therefore applicable to pending Section 138 complaints. The Court also recognised that an accused may, on a written request and subject to the Criminal Procedure Code, be permitted to give evidence on affidavit, while documentary objections may be noted and finally decided later, with curable defects regularised through further evidence.

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Issues: (i) Whether Section 145(2) of the Negotiable Instruments Act, 1881 permits the accused to require the complainant or a witness, who has already filed evidence on affidavit, to again give oral examination-in-chief, or whether the provision is confined to summoning the deponent for cross-examination and re-examination. (ii) Whether the amended Section 145 of the Negotiable Instruments Act, 1881 applies to complaints under Section 138 pending on the date of commencement of the amending Act. (iii) Whether an accused can be permitted to tender evidence on affidavit and how objections to documents filed with affidavit evidence are to be dealt with.

Issue (i): Whether Section 145(2) of the Negotiable Instruments Act, 1881 permits the accused to require the complainant or a witness, who has already filed evidence on affidavit, to again give oral examination-in-chief, or whether the provision is confined to summoning the deponent for cross-examination and re-examination.

Analysis: Section 145(1) confers a statutory right on the complainant to give evidence on affidavit and makes that affidavit usable as examination-in-chief. The Court held that Section 145(2) must be read harmoniously with sub-section (1) and with the object of speedy disposal of cheque dishonour cases. The word "examine" in sub-section (2) does not authorise the accused to compel fresh oral examination-in-chief of a witness whose affidavit is already on record. The accused's right is to have the deponent summoned for cross-examination, and the complainant may also seek further examination-in-chief only to cure defects in proof, especially where objections relate to the mode of proof of documents. A construction allowing routine repetition of examination-in-chief would defeat the legislative purpose and render sub-section (1) nugatory.

Conclusion: Section 145(2) does not confer on the accused a right to compel oral examination-in-chief of a witness who has already filed affidavit evidence; it is confined to cross-examination, with a limited right in appropriate cases to cure defects in proof.

Issue (ii): Whether the amended Section 145 of the Negotiable Instruments Act, 1881 applies to complaints under Section 138 pending on the date of commencement of the amending Act.

Analysis: The amendments introduced by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 were held to be procedural in nature. The Court applied the settled principle that procedural amendments ordinarily operate retrospectively unless the statute indicates a contrary intention. Since the provisions of Section 145 regulate the procedure for recording evidence and do not take away any vested substantive right of the accused, they apply to pending complaints. The non obstante clause also confirms that the special procedure is meant to operate notwithstanding the general procedure under the Code of Criminal Procedure, 1973.

Conclusion: The amended Section 145 applies retrospectively to pending complaints under Section 138.

Issue (iii): Whether an accused can be permitted to tender evidence on affidavit and how objections to documents filed with affidavit evidence are to be dealt with.

Analysis: The Court held that, though Section 145(1) expressly refers to the complainant, there is no legal bar to permitting an accused to give evidence on affidavit if the request is made in writing under Section 315 of the Code of Criminal Procedure, 1973 and subject to Section 316 of that Code. On documentary objections, the Court approved the practice of promptly noting objections and tentatively marking documents, especially where the objection concerns the mode of proof, while leaving final admissibility to be decided later. Where the defect is curable, the complainant may be allowed, before cross-examination begins, to lead further evidence to regularise proof. The Court also issued detailed procedural directions to trial courts to ensure expeditious disposal of cheque dishonour cases.

Conclusion: An accused may be allowed to give evidence on affidavit on a written request under Section 315 of the Code of Criminal Procedure, 1973, and documentary objections of the relevant kind may be dealt with by tentative marking and deferred determination.

Final Conclusion: The judgment substantially upheld the special affidavit-based procedure under the Negotiable Instruments Act, confirmed its application to pending cases, restricted the accused's right under Section 145(2) to cross-examination, and permitted limited procedural flexibility for the accused's own affidavit evidence and for handling objections to documents.

Ratio Decidendi: In cheque dishonour prosecutions, Section 145(2) of the Negotiable Instruments Act, 1881 is a procedural provision designed to secure cross-examination of affidavit evidence and efficient trial management; it does not permit the accused to insist on a fresh oral examination-in-chief, and the amended procedure applies to pending cases.

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