Section 145 NI Act Encompasses Court's Power To Summon & Re-Examine Witnesses: Himachal Pradesh High Court

The Himachal Pradesh High Court has recently ruled that while Section 145(2) of the NI Act does not explicitly mention the re-examination of the complainant or other witnesses, the phrase "summon and examine any person giving evidence in affidavit" also encompasses the court's power to summon and re-examine such witnesses.

A bench of Justice Vivek Singh Thakur was hearing a plea whereby the petitioner- complainant in a matter under Section 138 of the Negotiable Instruments Act had approached the Court against rejection of an application filed by her for her reexamination, by Judicial Magistrate.

The case revolved around a complaint filed by the petitioner under the Negotiable Instruments Act (NI Act) claiming that the respondent, Kapoor Chand, dishonored a cheque issued by him as the director of BHK Construction Company. During the petitioner's cross-examination, she admitted that the respondent was also an employee of the company. However, her counsel did not request permission to re-examine her on this matter.

Later, the petitioner filed an application to re-examine her and proposed filing an affidavit stating that the respondent was the chairman of the company and had issued the cheque on behalf of the company. The respondent opposed the application, arguing that the petitioner's admission during cross-examination was clear and unambiguous, and allowing re-examination would be an attempt to rectify the admission and unnecessarily prolong the proceedings.

The trial court dismissed the petitioner's application, stating that the proposed affidavit would be a withdrawal of the self-harming admission made during cross-examination and would unfairly advantage the petitioner while causing prejudice to the respondent/accused. Aggrieved of the same the petitioner preferred to assail the same through the instant petition.

The counsel for the petitioner argued that the petitioner has the right to be re-examined on a point that emerged during cross-examination, which appears to conflict with the contents of the examination-in-chief. The counsel stated that this re-examination is necessary for a complete and just adjudication of the matter, and it should not be considered as filling up a lacuna by the petitioner.

Adjudicating upon the matter, Justice Thakur noted that the provisions of Section 145 of NI Act, especially sub section (2) thereof is amply clear that after filing of an affidavit by the complainant or his witness(es), on an application filed by the prosecution or the accused, any person giving evidence on affidavit, can be summoned and examined by the court, as to the facts contained therein.

Elaborating further on the mandate of Section 145, the bench observed that according to the provision, a person can be examined and re-examined in a court proceeding, however , this does not give the complainant or any other person the right to submit a new affidavit of their statement as evidence. Instead, the court can summon and examine such individuals based on an application from either party.

However the court clarified,

"Though Section 145(2) of the NI Act does not speak explicitly about re-examination of complainant or any other witnesses, but I am of the considered opinion that term summon and examine any person giving evidence in affidavit also includes power of the Court to summon and re-examine such witness/person".

Applying the said position of law to the case at hand the bench observed that the petitioner has expressed the intention to submit a new affidavit in examination-in-chief, which is not allowed by law as he had already filed an affidavit in examination-in-chief, which was subsequently summoned, and underwent cross-examination. Therefore, the petitioner can only be summoned for re-examination if there are valid grounds to explain the matters discussed during cross-examination, the bench underscored.

The court further noted that the petitioner had initially claimed in the complaint and examination-in-chief that the respondent was the Director/Incharge of the company. However, during cross-examination, the petitioner admitted that the respondent was an employee of the company, similar to herself. The court observed that the petitioner's counsel failed to request a re-examination at the time to clarify the statement but later filed an application under Section 311 Cr.P.C. for the re-examination of the complainant.

Emphasising on the duty of the Court to determine the truth and render a just decision as failure of imparting justice would amount to miscarriage of justice the court said,

".. Mistake on the part of an Advocate or even of the party, the court should not desist from making an endeavor by permitting the party to re-examine the witness, including the complainant, but within the parameters and framework of law as contained under Sections 137 and 138 of the Indian Evidence Act read with Section 142 of the NI Act".

In view of the same the court held that the Petitioner shall not be entitled to file a fresh affidavit in reexamination, but shall be re-examined in the Court. If a new issue is introduced during re-examination with the court's permission, the respondent will have the right to cross-examine the petitioner on that matter, it concluded.

Case Title: Sumitra Devi Vs Kapoor Chand

Citation: 2023 LiveLaw (HP) 47

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