RADHEY SHYAM GARG versus NARESH KUMAR GUPTA

Citation: [2009] 7 S.C.R. 506 · Decided: 05-05-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

[2009] 7 S.C.R. 506 
A 
RADHEY SHYAM GARG 
1 -
v. 
NARESH KUMAR GUPTA 
Criminal Appeal No. 912 of 2009 
B 
MAY 5, 2009 
(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] 
D 
Sushi/ Kumar Sharma v. Union of India & Ors. (2005) 6 
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 
(2005) 10 sec 437 
distinguished 
Para 14 
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal 
No. 912 of 2009 
G 
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. 
c 
The Judgement of the Court was delivered by 
S.B. SINHA, J. 
1. Leave granted. 
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 
M.C. No.1522 of 2008. 
D 
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 page

Excerpt shown. Read the full judgment & AI analysis in Lexace.