Dismissed

Tata Steel Ltd. v. A.B. Trading and Ors.

Bombay HC5 Aug 2008APPLN/908/2008

Case brief

AI extract

What is this about?

This application challenged orders refusing to discard an affidavit in lieu of examination-in-chief filed by Tata Steel Limited regarding a cheque dishonour case. The court held that once an affidavit is filed, it cannot be discarded if the witness is alive, as the accused has a statutory right to cross-examine them.

What did the court decide?

Impugned orders confirmed; applications rejected; clarified that summons must be issued to the witness; adverse inference allowed for non-examination.

.The submissions of the learned counsel appearing for the parties were heard on the last date. The facts of the case in these four petitions are more or less identical and therefore for the sake of convenience, I am referring to the facts of the case in Criminal

Application No.908 of 2008. The applicant company is the complainant in a complaint filed under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act). The 1st and 2nd respondents in these applications have been arraigned as an accused in the complaint. The petitioner company filed an affidavit in lieu of examination of chief of one Mr.RajKumar. The said affidavit was filed on 25th July 2005. The said Mr.Rajkumar was an authorised representative of the applicant company. Thereafter, the petitioner company filed an affidavit in lieu of examination in chief of one Mr.Avijit Bhattacharya dated 04th May 2007. An application was made on behalf of 1st and 2nd respondents on 25th June 2007 contending that the evidence of Mr.Rajkumar is necessary for the just decision of the complaint and therefore the said witness Mr.Rajkumar should be summoned for cross examination by the advocate for the 1st and 2nd respondents. An order was passed on the said application on 18th September 2007 by the learned Special Metropolitan Magistrate directing that the petitioner should procure the presence of Mr.Raj Kumar to enable the 1st and 2nd respondents to cross examine him. The learned Judge observed that after cross examination of Mr.Raj Kumar, the complainant will be at liberty to examine other

2.An application was made on 08th October 2007 by the applicant in which it was stated that the said Mr.Rajkumar was the authorised representative of the petitioner. It was stated in the application that since the said Rajkumar resigned, an affidavit in lieu of examination in chief of Mr.Avijit, the present authorised representative of the petitioner has been filed. It is stated that the petitioner was unable to

establish contact with Mr.Rajkumar as he was not available. It is contended that Mr.Rajkumar is no longer under the control of the petitioner. It is stated in the application that the petitioner will not place reliance on the affidavit in lieu of examination in chief of Mr.Raj Kumar. Therefore, a prayer was made to record the evidence of Mr.Avijit whose affidavit in lieu of examination in chief was already filed. By order dated 08th October 2007 the said application made by the applicant was rejected by the learned Magistrate.

4.The challenge in this petition under section 482 of the Code of Criminal Procedure, 1973 (the said Code) is to the orders dated 18th September 2007 and 08th October 2007 referred to above. It must be stated here that the petitioner had preferred a revision application under section 397 of the said Code for challenging order dated 18th September 2007 passed by the learned Judge. The said revision application was dismissed on 29th January 2008. This order of the Sessions Court is also impugned in the present application.

5.The learned counsel appearing for the applicant submitted that by order dated 10th August 2006 the learned Judge had permitted the substitution of the authorised representative. He submitted that the affidavit of Mr.Rajkumar was filed as at the relevant time Mr.Rajkumar was the authorised representative of the applicant company. He stated that Mr.Rajkumar has ceased to be in the employment of the petitioner and the petitioner has no control over Mr.Rajkumar. He submitted that the applicant has made a categorical statement that no reliance will be placed on the

affidavit in lieu of examination in chief of Mr.Raj Kumar. He submitted that in fact the 1st and 2nd respondents had made an application for discarding the affidavit of Mr.Rajkumar. He placed reliance on a decision of the Apex Court in the case of Associated Cement Company Ltd. Vs. Keshvanand [(1998) 1 Supreme Court Cases 68 7]. He also placed reliance on the observations made by the Apex Court in the case of Dalmia Cement (Bharat) Ltd Vs. Galaxy Traders and Agencies Ltd and others [(2001) 6 Supreme Court Cases 463]. He relied upon paragraph 3 of the said decision. He submitted that a civil transaction has been made an offence by a legal fiction. He submitted that considering the very scheme of the provisions of the said Act of 1881 relating to offence under section 138 thereof, after the authorised representative of the petitioner is substituted by another, the Court cannot be insist on recording the evidence of the earlier authorised representative. He submitted that a complainant company can keep on changing its authorised representative and the accused cannot insist on the original authorised representative deposing before the learned Magistrate.

respondents invited my attention to the roznama of the case. He pointed out that the affidavit in lieu of examination in chief of Mr.Rajkumar was filed on record on 25th July 2005. He pointed out that thereafter the complaint was repeatedly adjourned. He pointed out that the earlier application made by the 1st and 2nd respondents was under sub section 2 of section 145 contending that the affidavit in lieu of examination in chief of Mr.Rajkumar should be discarded and he should be called upon to enter the witness box for recording his examination in chief. He pointed out that the complaint was fixed from time to time for cross examination of Mr.Rajkumar. He stated that even going by the case of the applicant, Mr.Rajkumar was very much available till 01st May 2007 as according to the case of the applicant he resigned on 01st May 2007. He submitted that once an affidavit in lieu of examination in chief of Mr.Raj Kumar is filed on behalf of the applicant, the 1st and 2nd respondents get a right to procure his presence for cross examination in view of the mandate of sub section 2 of section 145 of the said Act has interpreted by this Court. He, therefore, submitted that no interference was called for with the orders passed by the learned Magistrate.

7.I have carefully considered the submissions made by the learned counsel appearing for the parties. I have also perused a xerox copy of roznama of the proceedings. The affidavit of Mr.Rajkumar was tendered on 25th July 2005. The said affidavit was in lieu of examination in chief. The roznama shows that thereafter the complaint was adjourned from time to time for cross examination of the said witness. The document annexed on page 64 of the application records that Mr.Raj Kumar resigned with effect from 01st May 2007.

8.It will be necessary to refer to the application for substitution made by the petitioner on 10th August 2006. As pointed out earlier, on 10th August 2006, the affidavit in lieu of examination in chief was very much on record of the complaint. In the said application it is stated that earlier the applicant was represented by one Shailendra Patil who was later on substituted by Mr.Raj Kumar. Thus, on 10th August 2006 the petitioner has not made out a case that Mr.Rajkumar is not available. The only contention raised in the said application is that Mr.Rajkumar has been transferred out of Bombay and hence he is not in a position to attend the Court regularly. Thus, even on that day Mr.Rajkumar was very much available. The roznama shows that on 21st

September 2005, 01st December 2005, 17th Mach 2006, 09th March 2006 and 10th July 2006 the complaint was kept for recording cross examination of Mr.Rajkumar. However, the said Mr.Rajkumar never appeared before the Court.

9.It will be necessary to refer to the decision of this Court in the case of Indo International Ltd and another Vs. State of Maharashtra and another dated 25th July 2005. This Court has accepted that once an affidavit in lieu of examination in chief of a witness is filed by the complainant, the accused has a right under sub section 2 of section 145 to procure the presence of the said witness for cross examination.

10.Once an affidavit in lieu of examination in chief of a witness is filed by complainant, there is no provision of law under which the affidavit in lieu of examination in chief can be discarded so long as the witness is alive. Once an affidavit in lieu of examination in chief of a witness is filed by the complainant, the accused gets a right to cross examine the said witness. Sub section 2 of section 145 of the said Act of 1881 mandates that on the application of the accused, the Court shall summon the witness who has given evidence on affidavit. In any criminal trial the

the truth must come out before the Court. That is the object of the trial. After having filed an affidavit in lieu of examination in chief of Mr.Rajkumar, now the affidavit cannot be discarded on the ground that the said Mr.Rajkumar has ceased to be in the employment of the petitioner. Merely because the substitution of the said Rajkumar as authorised representative is permitted,

affidavit which is already filed. The decision of the Apex Court in the case of Associated Cement Company (supra) will not help the petitioner. All that the Apex Court holds in the said decision is that when a complaint is filed by a company, the complainant would be the person who represents such company in the Court. It was held that different persons may represent such

Mr.Rajkumar is filed in his capacity as a witness and merely because he is substituted by someone else as the authorised representative of the company, now the affidavit cannot be discarded. The earlier application made by the 1st and 2nd respondent was for procurring the presence of Mr.Rajkumar for recording his examination-in-chief in the Court. Therefore, this application made by the 1st and 2nd respondent will not help the applicant.

11.The learned trial Judge in order dated 18th September 2007 has directed the applicant to procure presence of Mr.Rajkumar. Sub section 2 of section 145 requires the Court to summon the witness for giving evidence. Though no interference is called for with the impugned orders, the order dated 18th September 2007 will have to be clarified by stating that a summons will have to be issued to Mr.Rajkumar. It must be also stated here that as the applicant had made no efforts to procure the presence of Mr.Rajkumar, it will be always open for the 1st and 2nd respondents to contend before the trial Court that an adverse inference needs to be drawn against the applicant on account of non examination of the said witness.

12.Subject to the modification/clarification made above, the impugned orders are confirmed and the applications are rejected. All contentions of the parties in the pending complaints are expressly kept open.

Tata Steel Ltd. v. A.B. Trading and Ors.

Case brief

What is this about?

What did the court decide?

Tata Steel Ltd. v. A.B. Trading and Ors.

Case brief

What is this about?

What did the court decide?

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