Holding

A witness who has given evidence by affidavit cannot be summoned again for examination in chief; Section 145(2) only authorises cross‑examination.

Summary

The appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, and the complainant's evidence was recorded by affidavit. The appellant later sought to have the complainant summoned again for examination in chief, invoking Section 145(2) of the Act, despite the affidavit already constituting the examination in chief. The High Court dismissed the application and the appellant appealed to the Supreme Court. The Court examined the statutory scheme of the Evidence Act, the Negotiable Instruments Act and the procedural codes, holding that Section 145(2) permits only cross‑examination of a deponent who has given evidence by affidavit and not a fresh examination in chief. It further ruled that CrPC Section 61 was inapplicable and that the object of the provision is to expedite trials, not to allow repeated chief examinations. Consequently, the appeal was dismissed with costs, and an enquiry under CrPC Section 340 was ordered on a signature discrepancy.

Issues considered

Whether a witness who has given evidence by affidavit under Section 145(1) of the Negotiable Instruments Act can be summoned again for examination in chief under Section 145(2).
Whether Section 61 of the Code of Criminal Procedure, 1973 applies to the present facts.
Whether the statutory scheme of the Evidence Act, CrPC and CPC permits a fresh chief examination of a deponent who has already testified by affidavit.

Legislation cited

Code of Civil Procedures. Order XIX Rule 1, s. Order XVIII Rule 4, s. Order XVIII Rule 5
Code of Criminal Procedure, 1973s. 296(2), s. 340, s. 61
Indian Evidence Act, 1872s. 137, s. 138
Negotiable Instruments Act, 1881s. 138, s. 145(2)

Subjects

Negotiable Instruments ActSection 138Section 145affidavit evidenceexamination in chiefcross‑examinationcriminal trialexpeditious trialevidence lawCrPC Section 61CPC Order 18

Judgment

[2009] 7 S.C.R. 506

A RADHEY SHYAM GARG 1-
v.
NARESH KUMAR GUPTA
Criminal Appeal No. 912 of 2009
MAY 5, 2009
B
(S.8. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.)
)>

Negotiable Instruments Act, 1881:
•
Sections 138, 145(2) - Evidence - Witness - Whether a
c witness can again be summoned for his examination in chief ·
despite affirming affidavits in that behalf- Held: No - Evidence
Act, 1872, Sections 137, 138 - Code of Criminal Procedure,
1973, Section 61.
The question involved in the appeal was whether a
D witness can again be summoned for his examination in
chief in the court despite affirming affidavits in that behalf. ....

Dismissing the appeal, the Court
HELD: 1. Examination in terms of the provisions of
E the Indian Evidence Act envisages examination in chief,
cross-examination and re-examination, as would appear
from Sections 137 and 138 thereof. A person whose
evidence has been taken by way of an examination in chief ..
by way of affidavit, keeping in view the statutory scheme
F noticed both in the Code of Civil Procedure as also in the
Code of Criminal Procedure, there cannot be any doubt
whatsoever that a person intends to summon a witness
who had filed his affidavit would be only for the purpose
of his cross-examination. It is, however, possible that a
G party examining his own witnesses including the
·complainant may not affirm an affidavit or would like to
examine himself in court. Sub-section (2) of Section 145
as also sub-section (2) of Section 296 of the Code of

H 506
RADHEY SHYAM GARG V NARESH KUMAR GUPTA 507

Criminal Procedure, should be interpreted in that manner. A
[Para 13) [514-8-E]
2. If affidavit in terms of the provisions of Section 145
of the Act is to be considered to be an evidence, it is
difficult to comprehend as to why the court will ask the
deponent of the said affidavit to examine himself with · -8
regard to the contents thereof once over again. He may
be cross-examined and upon completion of his evidence,
he may be re-examined. Thus, the words "examine any
person giving evidence on affidavit as to the facts con-
tained therein, in the event, the deponent is summoned C ,
by the court in terms of sub-section (2) of Section 145 of
the Act", would mean for the purpose of cross-exami-

- nation. The provision seeks to attend a salutary purpose.
[Para 15] [516-8-D]
Sushi/ Kumar Sharma v. Union of India & Ors. (2005) 6
D
sec 281 - held inapplicable.
State of Jharkhand & Anr. v. Govind Singh (2005) 10 SCC
437 - distinguished.
3. The object of enactment of the said provision is E
for the purpose of expedition of the trial. A criminal trial
even otherwise is required to be expeditiously held. There,
is no justification for arriving at a finding that a witness
can again be summoned for his examination in chief in
the court despite affirming affidavit in that behalf. Section F
61 Cr.P.C., has no application to the facts and circum-
stances of this case. [Paras 16,17,18] [516-G-H; 517-A-C]
Case Law Reference
(2005) 6 sec 281 held inapplicable Para 14 G

(2005) 10 sec 437 distinguished Para 14
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 912 of 2009
H
508 SUPREME COURT REPORTS [2009] 7 S.C.R.

A ·From the Judgement and Order dated 14.03.2008 of the i
Metropolitan Magistrate, Delhi
Vishal Aggarwal, Vishal Garg (for S.S. Jauhar), for the
Appellant.
B Naresh K. Gupta-in-person, for the Respondent.

The Judgement of the Court was delivered by
S.B. SINHA, J. •
1. Leave granted.
c
2. Appellant is before us aggrieved by and dissatisfied
with a judgment and order dated 9.5.2008 passed by a learned
Single Judge of the High Court of Delhi at New Delhi in Criminal

D
M.C. No.1522 of 2008.
3. Respondent filed a complaint petition in the Court of
-
Chief Metropolitan Magistrate, Delhi on or about 7.6.2004 which
was marked as Criminal Complaint Case No.882/1 of 2004 for
iommission of an alleged offence under Section 138 of the
'Negotiable Instruments Act, 1881 (for short, 'the Act'). Pre-
E summoning evidence by the complainant was recorded by way
of an affidavit. Cognizance of the offence was taken and
summons was directed to be issued by an order dated 9.6.2004.
Post-summoning evidence was also adduced by the
complainant on 26.3.2007 by way of cm affidavit.
F 4. It now appears that respondent examined himself and
was cross-examined at !cngth. His cross-examination started
12.9.2008. It runs into nine typed pages. Indisputably, prior to
offering himself for cross-examination, appellant proved his
affidavits which were marked as Exhibits CW1/A to CW1/1. A
G large number of questions were asked to the deponent on the
contents of the affidavits.
5. It, however, appears that an application purported to be
under Section 145(2) of the Act was filed by the appellant on
H 7.3.2008 which by reason of an order dated 14.3.2008 was
RADHEY SHYAM GARG V. 509
NAR_ESH KUMAR GUPTA [S.S. SINHA, J.]

dismissed. Appellant filed an application before the High Court A
purported to be under Section 482 of the Code of Criminal
Procedure for setting aside the said order.
By reason of the impugned judgment, the same. has been
dismissed. ·
B
6. Mr. Vishal Aggarwal, learned counsel appearing on
behalf of the appellant, would contend that on a plain reading of
Section 145 of the Act, it would be evident that the same is
imperative in character. By reason of the said provision, it was
urged, the court has no other option but to examine a witness c
including the complainant who had affirmed an affidavit in support
of his statement. Drawing our attention to the provisions of sub-
section (2) of Section 296 of the Code of Criminal Procedure,
the learned counsel. would urge that the same being in pari
materia with Section 145 of the Act, the learned Trial Judge as
0
also the High Court must be held to have committed a serious ' . ·
error in passing the impugned judgment.
7. Respondent who, however, has appeared in person
drew our attention to some disturbing facts, namely, the
signatures of the appellant appearing at the end of the E
verification portion which is at page 39 of the paper book as
also bis signatures appearing in the affidavit affirmed in support
of the application for stay to contend that even with a naked
eye, the same would appear to be different. Our attention was
furthermore drawn to the fact thatalthough in the affidavit affirmed F
by the appellant in support of the application for stay· is dated
31.7.2008, the same appears to have been drafted on
16.9.2008 and filed on 19.9.2008. We may, however, notice
that in our copy, the said application was said to have been
drawn on 30.7.2008 and filed-on 31.7.2008.
G
·8. Before, however, we advert thereto, we may place on
record that the respondent herein in his affidavit has stated as
under:
"4. That cross-examination of the respondent in trial Court H
510 SUPREME COURT REPORTS [2009] 7 S.C.R.

A in complaint No.882/1 of 2004 (presently numbered as
521/07) had already been completed on 121h September,
2009 befo~e filing of the abovementioned petition on
19.09.2008. A certified copy of the cross-examination of
the respondent is enclosed-Annexure R-1.
B 5. That while applying for stay this material fact of
respondent's examination already being over was not j
brought to the notice of this Hon'ble Court and was hidden
from this Hon'ble Court. The petitioner has got opportunity
to examine the respondent and has already availed the
c same on the point sought to be considered in Special
Leave Petition No.7487 of 2008 filed by the petitioner.
6. That the respondent has also been examined by the
counsel of the accused on 16.07.2008 and 30.08.2008 in
another Civil Suit No.325/06 filed by the respondent for
D
the same matter in the Court of Additional District Judge
at Tis Hazari Courts. A certified copy of the same is
enclosed-Annexure R-2.
7. That even petitioner has been examined partly in the
E said Civil Suit No.325/06 on 19.02.2008 in the Court of
Additional District Judge at Tis Hazari Courts. A certified
copy of the same is enclosed-Annexure R-3.
8. After 19.02.2008, the appellant had not been attending
the proceedings for more than 6 months resulting into
F imposition of costs and closure of his right of cross
examination on 10.09.2008. A certified copy of the same
is enclosed - Annexure R-4.
9. The petitioner has not been presenting himself even
after the· ex pa rte order in the aforesaid civil suit and
G
seeking adjournment on frivolous grounds."
9. No .rejoinder thereto has been filed by the appellant. ..
The contents thereof even otherwise are matter of record.
10. Evidence by way of affidavit, thus, was filed both in the
H
RADHEY SHYAM GARG V. 511
NARESH KUMAR GUPTA [S.B. SINHA, J.)

civil proceedings as also in the criminal proceedings. We have A
noticed hereinbefore, the cross-examination is also over. It has.
not been shown nor do we find that the appellant has been
prejudiced in any manner whatsoever. Section .145 of the Act
reads as under :
"145.-Evidence on affidavit.-(1) Notwithstanding B
anything contained in the Code of Criminal Procedure,
1973 (2of1974), the evidence of the complainant may be
given by him on affidavit and may, subject to all just
exceptions be read in evidence in any enquiry, trial or
other proceeding under the said Code. C
(2) The Court may, if it thinks fit, and shall, on the application
of the prosecution or the accused, summo·n and examine
any person giving evidence on affidavit as to the facts
contained therein."
'· ,0'
It contains a non-obstante clause. The provisions of the
Code of Criminal Procedure, 1973 are, thus, not attracted. The
Court, subject to just exceptions, may allow the complainant to
give evide11ce by way of affidavit. Such an evidence by way of
affidavit had been made admissible in evidence in any enquiry, E
trial or other proceedings under the Code. Whereas sub-section
(1) of Section 145 uses the term 'may', sub-section (2) thereof
uses the term 'shall'. The first part of the aforementioned
provision must be read with sub-section (1) of Section 145. It,
therefore, merely points out to the discretionary power of the
court conferred upon it by reason thereof. F
The Court, however, has no other option but to summon
and examine any person who has given evidence on affidavit
as to the facts contained therein if an application is filed either
by the prosecution or the aQcused. Section 145 must be read
reasonably. Section 296 of the Code of Crimi'iial Procedure G
although refers to an evidence of a formal character, no doubt
contains a pari materia provision.
We may also notice the relevant provisions of the Code of
Civil Procedure. H
512 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 11. Order XIX, Rule 1 of the Code Procedure reads as
under:

"1. Power to.. order any point to be proved by·affidavit-
Any Court may at any time for sufficient reason order that
any particular fact or facts may be proved by affidavit, or
B that the affiday!t of any witness may be read at the hearing,
on such conditions as the Court thinks reasonable :

Provided that where it appears to the Court that either
party bona fide desires the production of a witness for
c cross-examination, and that such witness can be
.produced, an order shall not be made authorizing the
evidence of such witness to be given by affidavit."

The relevant portion of Order XVII I Rule 4 reads as under:
.\
"4. Recording of evidence-(1) In every case, the
D
examination-in-chief of a witness shall be on affidavit and
copies thereof shall be supplied to the opposite party by
the party who calls him for evidence:

. Provided that where documents are filed and the parties
E r.!'!IY upon the documents, the proof and admissibility of
such dgcuments which are filed along with affidavit shall
be subject to the orders oftne Court.
(2) The evidence (cross-examination and re-examination)
of the witness in attendance, whose evidence
F (examination-in-chief) by affidavit has been furnished to
the Court shall be taken either by the Court or by the
C9mmissioner appointed by it:
A Three Judge Bench of this Court in Ameer Trading
G Corporation Ltd. v. Shapoorji pata Processing Ltd. [(2004) 1
sec
702], held as under :
"13. The other sub-rules of Rule 4 of Order 18 provide for
other and further procedures as regards examination of
witness.
H
RADHEY SHYAM GARG V. 513.
NARESH KUMAR GUPTA [S.B. SINHf._ J.]

14. Rule 5 refers to the evidence which ls required to be A
taken in cases where the appeal is allowed in
contradistinction with the cases where appeal is not ..
allowed as envisaged in Rule 13 of Order 18 of the Code
of Civil Procedure. Rule 5, therefore, envisages a.situation
where the c;o_urt is requir.ed to take down an evidence .in B
the manner laid down therein which would rnean that where
cross-examination or re~examination of the witness is to
take place in the court.

15. The examination of a witness would include evidence-
in-chief, cross-examination or re-examination. Rule 4 of C
Order 18 speaks of examination-in-chief. The unamended
rule provided for the manner in which "evidence")s to be
taken. Such examination-in-chief of a witne.ss ln every case
shall be on affidavit.
D
16. The aforementioned provision has been made to curtail
the time taken by the court in examining a witness-in-
chief. Sub-rule (2) .of Rule 4 of Order 18 of the Code of
G,ivil Procedure provides for cross-examination and re- ·
.examination of a witness which shall be taken by the court
· or the Commissioner appointed by it. E

17. We may notice that Rule 4 of Order 18 as amended
with effect from 1-7-2002 specifically provided thereunder
that the examination-in-chief in every case shall be on
affidavit. Rule 5 of Order 18 had 6een incorporated even - F ,
prior t.o the said ~mendment."
12. Mr. Aggarwal, however, has drawn our attention to a.
decision of this. Court in State of Punjab v. Naib Din [(2001) 8 -
sec 578], wherein -it has been held : -- .
G
"8. What is meant by an evidence of a formal character?
It depends upon the facts of the case. Quite often different
steps adopted by police officers dc.nng the investigation
might relate to formalities prescribed by law. Evidence, if
necessary on those formalities, should normally be H
514 SUPREME COURT REPORTS [2009] 7 S.C.R.

A tendered by affidavits and not by examining all such
policemen in court. If any party to a lis wishes to examine
the deponent of the affidavit it is open to him to make an
application before the Court that he requires the deponent
to be examined or cross-examined in Court. This is
B provided in sub-section (2) of Section 296 of the Code.
When any such application is made it is the duty of the
Court to call such person to the court for the purpose of
being examined."

13. Examination in terms of the provisions of the Indian
C Evidence Act envisages examination in chief, cross-
examination and re-examination, as would appear from
Sections 137 and 138 thereof. A person whose evidence has
be~n taken by way of an examination in chief by way of affidavit,
keeping in view the statutory scheme noticed both in the Code
D of Civil Procedure as also in the Code of Criminal Procedure,
there c(!nnot be any doubt whatsoever that a person intends to
summon a witness who had filed his affidavit would be only for
the purpose, of his cross-examination. It is, however, possible
that a party' examining his own witnesses including the
E complainant may not affirm an affidavit or would like to examine
himself in court. Sub-section (2) of Section 145 as also sub-
section (2) of Section 296 of the Code of Criminal Procedure,
in our opinion, should be interpreted in that manner.

14. Our attention has furthermore been drawn to a decision
F of this Court in Sushi/ Kumar Sharma v. Union of India & Ors.
[(2005) 6 SCC 281], wherein this Court held as under:
"16. As observed in Maulavi Hussein Haji Abraham Umarji
v. State of Gujarat, Unique Butyle Tube Industries (P) Ltd.
v. U.P. Financial Corpn, and Padma Sundara Rao v. State
G
of T.N. while interpreting a provision, the Court only
interprets the law and cannot legislate it. If a provision of
law is misused and subjected to the abuse of the process
of law, it is for the legislature to amend, modify or repeal
it, if deemed necessary."
H
RADHEY SHYAM GARG V 515
NARESH KUMAR GUPTA [S.B. SINHA, J]

There is no dispute with regard to the aforementioned A
proposition of law. However, while interpreting a provision, the
Court must be able to assign a meaning thereto. A plain'fneaning
or literal interpretation should not lead to absurdity or an
anomalous situation.
The Court therein was dealing with an offence. The said 8
,. word used having regard to the contentions raised therein that
Section 498A of the Indian Penal Code was possible to be
misused. It was in the aforementioned context, the Court
observed:
c
"12. It is well settled that mere possibility of abuse of a
provision of law does not per se invalidate a legislation.
It must be presumed, unless the contrary is proved, that
administration and application of a particular law would
,. be done "not with an evil eye and unequal hand". (See A.
0
Thangal Kunju Musa/iar v. M. Venkatichalam Patti.}
xxx xxx xxx
14. From the decided cases in India as well as in the
United States of America, the principle appears to be well
settled that if a statutory provision is otherwise intra vires, E
constitutional and valid, mere possibility of abuse of power
i in a given case would not make it objectionable, ultra
vires or unconstitutional. In such cases, "action" and not
the "section" may be vulnerable. If it is so, the court by
upholding the provision of law, may still set aside the action, F
·order or decision and grant appropriate relief to the person
aggrieved."
The said decision, therefore, in our opinion, has no
application at all:
G
Reliance has also been placed on State-of Jharkhand &
Anr. v. Govind Singh [(2005) 10 SCC 437], wherein it was
stated:
"12. It is said that a statute is an edict of the legislature. H
516 SUPREME COURT REPORTS [2009] 7 S.C.R.

A The elementary principle of interpreting or construing a
statute is to gather the mens or sentential legis or the
leg isl atu re."
The said rule, however, would apply only where the ·
language is clear.
B
15. If affidavit in terms of the provisions of Section 145 of
the Act is to be considered to be an evidence, it is difficult to
comprehend as to why the court will ask the deponent of the
said affidavit to examine himself with regard to the contents
thereof once over again. He may be cross-examined and upon
C completion of his evidence, he may be re-examined. Thus, the
words "examine any person giving evidence on affidavit as to
the fads contained therein, in the event, the deponent, is
summoned by the court in terms of sub-section (2) of Section
145 of the Act', in our opinion, would mean for the purpose of
D cross~examination. The provision seeks to attend a salutary
purpose.
The statements of objects and reasons for enacting the
said provision, inter alia read, inter alia, as under :
E "Keeping in view of the recommendations of the Standing
Committee on Finance and other representations, it has
· been decided to bring out, inter alia, the following
amendments in the Negotiable Instruments Act, 1881,
namely:-
F (i) to (iii) ...
(iv) to prescribe procedure for dispensing witb
preliminary evidence of the complainant;
(v)
G (vi) to provide for summary trial of the cases under the
Act with a view to speeding up disposal of cases;"
16. The object of enactment of the said provision is for the
purpose of expedition of the trial. A criminal trial even otherwise
is required to be expeditiously held.
H
RADHEY SHYAM GARG- V. 517
NARESH KUMAR GUPTA [S.B. SINHA, J]
' 17--:--We, therefore, do not find any justification for arriving A
at a finding that a witness cari again be summoned for his
examination in chief in the court despite affirming affidavit in
that behalf.

18. Respondent would however, submit that having regard
to the provisions of Section 61 of the Code of Criminal B
)" P~ocedure and furthermore in view.of the fact t~~t a complainant
is required to be present throughout and, thus, unless_ exempted,
question of summoning him does not arise. Section 61 of the
Code, however, in our opinion, has no application· to the facts
and circumstances of this case. c
19. \Ne do not find any merit in this appeal. It is dismissed
accordingly. However, keeping in view the fact that there

-. appears to be an apparent dissimilarity in the signatures of the
deponent appearing at pages 39 and 61, we are of the opinion
that there exists a necessity for conducting an enquiry in this
D
behalf. We, therefore; direct the Registrar (Judicial) to conduct
an enquiry in. terms of Section 340 of the Code Of Criminal
Procedure and submit a report to this Court. We, however, make
it clear that trial of the matter shall go on before the court below.
-'--~
E
20. The appeal is dismissed with costs. Counsel's fee
-t assessed at Rs.25,000/-.

G.N. Appeal dismissed.

-I