IN THE COURT OF THE LD. SPL.

METROPLITAN MAGISTRATE AT
SMALL CAUSES COURT, MUMBAI.

C. C. NO. 565 / S / 2004.

Hashmukhrai S. Panchmatia. Complainant.

Versus.

Jashwantilal Kantilal [Ankleshwar] Pvt. Ltd.

And Ors. Accused.

APPLICATION U/S. 145(2) OF THE N.I. ACT

ON BEHALF OF THE ACCUSED
ABOVENAMED.

MAY IT PLEASE YOUR HONOUR:

On behalf of the Accused abovenamed is it respectfully submitted as

under:

1. That the Complainant has served the copy of the affidavit of

examination in chief on the Accused. Together with the affidavit of
examination in chief, the Complainant has annexed certain
documents to prove the prosecution case.

2. The Accused are filing the present application by invoking the

provisions of section 145[2] of the N.I. Act seeking an order and
direction from this Hon’ble Court to direct the Complainant to enter
the witness box and to lead examination in chief as provided under
the amended provisions of the Negotiable Instruments Act.

3. The provision of Section 145 reads as under:

145. Evidence on affidavit-[1] Notwithstanding anything contained

in the Code of Criminal Procedure, 1973 [2of 1974], the evidence of
the Complainant may be given by him on affidavit and may, subject
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to all just exceptions be read in evidence in any enquiry, trial or

other proceeding under the said code.

[2] The Court may, if it thinks fit, and shall, on the application of the
prosecution or the Accused, summon and examine any person
giving evidence on affidavit as to the facts contained therein.

The Accused respectfully submits that under the provisions of sub-

section [2] of section 145 the Hon’ble Court has been given
discretion to summon and examine any person giving evidence on
affidavit as to the facts contained therein. Further under the
provisions of sub-section [2] of section 145 when prosecution or the
Accused prefers an application, the Hon’ble Court ‘shall’ summon
and examine any person giving evidence on affidavit as to the facts
contained therein.

4. In view of the mandatory provisions of sub-section [2] of section

145 the Accused prefer the present application to summon and
examine the Complainant who is giving evidence on affidavit as to
the facts contained therein.

5. The Accused say that the reason of preferring the present

application is that the deponent of the affidavit does not have
personal knowledge of the facts as stated in the affidavit and hence
the Complainant/deponent does not have a right to depose such
facts that are hearsay. Further the deponent of the affidavit has not
stated anything about the facts that are in the personal knowledge
and the facts that are derived from other source hence even on this
count, the deponent of the affidavit does not have a right to file the
affidavit of examination in chief.

6. The Accused respectfully submits that the affidavit as framed and

filed clearly shows that the same is a creation of a legally trained
mind and is in the nature of arguments that in not within the
meaning and scope of expression evidence and contrary to the
provisions of law. In the light of the above facts it is just, necessary
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and otherwise expedient in the interest of justice that a direction

and order is passed to direct the Complainant to give oral evidence
of the contents of the affidavit as provided in the mandatory
provisions of section 145[2] N.I. Act.

7. The Accused respectfully submits that the amended provisions of

Section 145[2] N. I. Act are analogues to the provisions of Section
296 Cr. P. C. While interpreting the scope of the provision of
Section 296 Cr. P. C. the Hon’ble Supreme Court in the case of
Naib Din has held that in case a party to a lis desires and makes an
application to summon and examine the deponent of the affidavit
then the Hon’ble Court shall summon and examine such deponent.
The Accused craves leave to refer to and rely on the rulings of the
Hon’ble Supreme Court in this behalf as and when produced.

8. The Accused further submits that that the obvious disadvantage of

accepting evidence by way of affidavit is that the Hon’ble Court is
denied/deprived of observing the demeanor of the witness when
such a witness deposes from the witness box. Further the defence
is denied/deprived of an opportunity to object at appropriate stage
evidence that is inadmissible and irrelevant as provided by the
provisions of the Indian Evidence Act.

9. The Accused say that though subsection (1) of section 145 of N.I.
Act enables the complainant to give evidence in the form of
affidavit, the provisions of sub section (2) of section 145 of N.I. Act,
conferred legal right upon the Complainant and the Accused, to
summon and examine the deponent of affidavit, for the purpose of
recording his examination with regard to the facts stated in the
affidavit.

10. The Accused say that the true spirit and legislative intention of the
provisions of section 145(2) of N.I. Act came up for consideration
before this Hon’ble Court in Criminal W.P.No.26/2004, wherein the
Learned Single Judge of this Hon’ble Court (Coram: His Lordship
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Mr. Justice A. S. Aguire), while deciding the said writ petition on

2/9/2004, was pleased to hold that:

“Be that as it may. Sub section (1) of 145 of N.I. Act makes
it obligatory on the courts to summon and examine the
complainant on the application made by the Accused. In
view thereof, petition is allowed. Learned J.M.F.C., Pune, is
directed to summon the complainant and record his
examination in chief and thereafter permit the Accused-
petitioner to cross examine the complainant.”

11. The Accused say that as per the provisions of sub section (2) of
section 145 of N.I. Act, the complainant as well as Accused was
entitled in law to request the court for summoning and examining
the deponent of an affidavit, with regard to the facts stated by the
deponent in his affidavit.

12. The Accused say that the process of recording of evidence and the
matters pertaining to the relevancy and admissibility of the
evidence is governed only by the provisions of Indian Evidence Act.
The Code of Criminal Procedure merely makes regulatory
provisions for recording such evidence in a criminal trial. Though,
the provisions of section 145 of Negotiable Instruments Act
commence with Non obstente clause, the said provision cannot by
any stretch of imagination, affect or supervene, the general
provisions appearing in the Indian Evidence Act. The Accused say
that the non obstente clause appearing in the beginning of section
145 of N.I. Act at the most can eclipse only the provisions of Code
of Criminal Procedure but does not affect any of the provisions of
Indian Evidence Act.

13. The Accused further submit that the issues that are raised in the
present application u/s 145(2) were similarly raised before the
Hon’ble Bombay High Court in Cr. Application No 3638 of 2005 in
the case of Harish Chandra Biyani Vs. Stock Holding Corp. of India
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& Anr. Reported in 2006[1] Bom. C. R. [Cri] 264.The Hon’ble

Bombay High Court was pleased to reject the said Cr. Application
vide order dated 11.10.2005.

14. That against the said Order of the Hon’ble Bombay High Court, the
Applicant therein has preferred an SLP. No. 6302 of 2005 in the
Hon’ble Supreme Court and the Hon’ble Supreme Court has
disposed of the said matter since the Complainant in that case
conceded for leading oral evidence.

15. After the passing of the order by the Hon’ble Supreme Court, His
Lordship Justice D. B. Bhosale of the Hon’ble Bombay High Court
once again reconsidered the provisions of section 145[2] N. I. and
dismissed a bunch/group of 25 petitions in the case of Peacock
Industries. Against the said order passed by His Lordship Justice D.
B. Bhosale one of the parties namely Mandvi Coop Bank Ltd. have
filed SLP No. 3915/06 in the Hon’ble Supreme Court and operation
of the order of the Hon’ble Bombay High Court has been stayed.
Copy of the order passed by the Hon’ble Supreme Court in SLP
No. 3915/06 is at Exhibit ‘A’ hereto. The Hon’ble Supreme Court
has in yet another SLP [Cr.] No. 4760/06 in the case of Lionnaira
Holdings and Investments Ltd. and Others versus Jiji Marshal
Trading P. Ltd. arising out of one of the 25 petitions decided by the
Hon’ble Bombay High in the matter of Peacock industries has on
19.10.06 stayed the further proceedings in the matter. Hereto
annexed and marked as Exhibit ‘B’ is the copy of the order passed
in SLP [Cr.] No. 4760/06. The Hon’ble Supreme Court has in yet
another CRL. MP No. 942/2007 in the case of Shirish Welling V/s.
State of Maharashtra and Anr. arising out of one of the 25 petitions
decided by the Hon’ble Bombay High in the matter of Peacock
industries has on 19.2.2007 stayed the further proceedings in the
matter. Hereto annexed and marked as Exhibit ‘C’ is the copy of the
order passed in CRL. MP No. 942/2007.

16. In addition to the said orders passed by the Hon’ble Supreme Court
as annexed with the Application U/s. 145 [2] N. I. Act filed by the
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accused, the accused respectfully submits that the same issue of

Section 145 [2] N. I. Act has once again come for reconsideration
before the Hon’ble Bombay High Court in Cr. Writ Petition No. 308
and 309 of 2007 in the case of Mitesh Rughani V/s. Jayant D.
Doshi and Anr. and on 26.2.2007 Her Ladyship Smt. V. K.
Tahilramani has been pleased to grant ad interim stay of
proceedings in case where the application under section 145[2] N.
I. Act was dismissed by the Ld. MM 43 rd Court at Borivali, Mumbai.
Hereto annexed and marked at Exhibit ‘D’ is the copy of the Order
dated 26.2.2007 passed by the Hon’ble Bombay High Court. The
accused craves leave to refer to and rely on the copies of the Writ
Petition Nos. 308 and 309 of 2007 as and when produced.

17. The accused therefore says that it is just, necessary and otherwise
expedient in the interest of justice that the further hearing and
arguments on application u/s. 145 (2) be adjourned suitably,
awaiting the decision of the Hon’ble Supreme High Court in order
that the multiplicity of further application / litigation can be avoided.

18. Further grave prejudice will be caused to the Accused if the

hearing is not differed since, the Accused will be denied the
opportunity of taking the benefits of provisions of S.145 (2) N. I. Act
in the event of the Hon’ble Supreme High Court taking a view in
favour of the Accused.

The Accused therefore pray that:

a. This Hon’ble Court be pleased to direct the Complainant to

enter the witness box and lead examination in chief as
provide under the provisions of sub-section [2] of section
145 of the N. I. Act.

b. In the alternative this Hon’ble Court be pleased to

postpone/ defer the hearing of the present application u/s.
145 (2) N. I Act till the decision is rendered by the Hon’ble
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Supreme Court the SLPs [Cr.] No. 3915/06, 4760/06 and

CRL. MP No. 942/2007 annexed as Exhibit ‘A’, ‘B’ and ‘C’
hereto and by the Hon’ble Bombay High Court in Writ
Petition Nos. 308 and 309 of 2007 at Exhibit ‘D’ to the
present application.

c. Any other relief be granted.

And for this act of kindness, the accused shall as ever duty bound pray.

Dated this day of May, 2007.

Manohar H. Ramsinghani,
Advocate for Accused.