2024 (1) TMI 1292

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....idence in the matter. The petition also lays a challenge to the order dated 24.08.2022 passed in Criminal Revision No. 21/2022 passed by the learned Adhoc District Judge-1 and Additional Sessions Judge, Khamgaon, District Buldhana confirming the order passed by the learned JMFC, Shegaon. 4. The respondent has filed the criminal complaint for the offence punishable under Section 138 of the Negotiable Instrument Act, 1881 (for short, "NI Act") against the petitioner. After conclusion of the evidence of the complainant side, the petitioner proposed himself to be examined as a witness and filed an affidavit of examination-in-chief of himself. He was cross-examined. When the matter was fixed for final argument, the petitioner moved the applicat....

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....e unfounded assumption that the language of the section clearly says that the person giving his evidence on affidavit, on being summoned at the instance of the accused must start his deposition in court with examination-in-chief. We find nothing in Section 145(2) to suggest that. We may also make it clear that Section 137 of the Evidence Act does not define "examine" to mean and include the three kinds of examination of a witness; it simply defines "examination-in-chief", "cross-examination" and "re-examination". What section 145(2) of the Act says is simply this. The court may, at its discretion, call a person giving his evidence on affidavit and examine him as to the facts contained therein. But if an application is made either by the pro....

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....nciated in the decisions of the Supreme Court and of this Court that the accused could not be permitted to file an affidavit of evidence in lieu of the examination-in-chief, I find substance in the argument of the learned counsel for the petitioner that instead the petitioner shall be allowed to adduce his oral evidence. 10. In view of the above, the order of learned Magistrate of not permitting the petitioner to adduce oral evidence, does not stand. Since, earlier the petitioner himself submitted affidavit of evidence in lieu of his oral evidence, he was cross-examined. This consumed a lot of time of the Trial Court. Therefore, the petition needs to be allowed with costs. Hence, the following order:- i) The impugned orders dated 24.08.2....