Section 145 of the NI Act provides that evidence of the complainant may be given by him on affidavit, which shall be read in evidence in an inquiry, trial or other proceeding notwithstanding anything contained in the CrPC. The Constitution Bench held that Section 145 has been inserted in the Act, with effect from 2003 with the laudable object of speeding up trials in complaints filed under Section 138. Hence, the Court noted that if the evidence of the complainant may be given by him on affidavit, there is no reason for insisting on the evidence of the witnesses to be taken on oath. Consequently, it was held that Section 202(2) CrPC is inapplicable to complaints under Section 138 in respect of the examination of witnesses on oath. The Court held that the evidence of witnesses on behalf of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses and in suitable cases the Magistrate can examine documents to be satisfied that there are sufficient grounds for proceeding under Section 202.{Para 38}
39. In the present case, the Magistrate has adverted to:
(i) The complaint;
(ii) The affidavit filed by the complainant;
(iii) The evidence as per evidence list and; and
(iv) The submissions of the complainant.
40. The order passed by the Magistrate cannot be held to be invalid as betraying a non-application of mind.
Supreme Court
JUSTICE Dr. DHANANJAYA Y. CHANDRACHUD JUSTICE A. S. BOPANNA
Sunil Todi & Ors. Vs. State of Gujarat & Anr.
Criminal Appeal No. 1446 of 2021
3rd December 2021
Author: Dr. Dhananjaya Y. Chandrachud, J.
Citation: 2021 ALL SCR (ONLINE) 722
