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Issues: (i) Whether an application under Section 145(2) of the Negotiable Instruments Act, 1881 obliges the Court to summon and examine the deponent of the affidavit. (ii) Whether such an application can be entertained before the stage at which the complainant has been given an opportunity to lead further evidence after the commencement of trial.
Issue (i): Whether an application under Section 145(2) of the Negotiable Instruments Act, 1881 obliges the Court to summon and examine the deponent of the affidavit.
Analysis: Section 145(2) uses mandatory language for applications made by the prosecution or the accused. The provision is designed to safeguard the right of fair trial in proceedings under Chapter XVII of the Act. The Court held that once such an application is made, the Magistrate has no discretion to refuse summoning and examination of the person who has given evidence on affidavit as to the facts contained therein.
Conclusion: The application under Section 145(2) could not be rejected on merits, and the accused was entitled to have the deponent summoned and examined.
Issue (ii): Whether such an application can be entertained before the stage at which the complainant has been given an opportunity to lead further evidence after the commencement of trial.
Analysis: The procedure under Chapter XVII of the Negotiable Instruments Act, read with Sections 262 to 265 and Section 251 of the Code of Criminal Procedure, 1973, requires the Magistrate first to identify the nature of trial and then proceed to record the substance of accusation or notice of accusation, as the case may be. The application under Section 145(2) becomes relevant only after that stage, when the complainant has been afforded opportunity to complete evidence. Entertaining it earlier amounts to reversal of the proper sequence of procedure.
Conclusion: The application was moved at an improper stage and ought to have been considered only after commencement of trial and completion of the complainant's further evidence, if any.
Final Conclusion: The impugned order was unsustainable because it ignored the mandatory effect of Section 145(2) and also proceeded at a procedurally incorrect stage. The matter was directed to be considered afresh in accordance with the proper trial sequence.
Ratio Decidendi: In proceedings under the Negotiable Instruments Act, an application by the accused under Section 145(2) mandatorily requires summoning and examination of the affidavit deponent, but only at the proper stage after the trial has commenced and the complainant has had an opportunity to lead further evidence.
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