High Court of Bombay

Venugopal Jainarayan Bhattad Vs. Harishchandra & Co. Jaliwala & Co. and Ors. (Neutral Citation: 2024:BHC-AS:627)

MANU/MH/0062/2024

08.01.2024

Banking

A Magistrate is expected to be vigilant and not a silent spectator while conducting a trial

The challenge in present Appeal is to the Judgment passed by the learned Metropolitan Magistrate, whereby the accused/ Respondents No.1 and 2 came to be acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('the NI Act').

It transpires that, the learned Magistrate proceeded to conduct the entire trial on the assumption that the affidavit was proper. From the date of filing of the complainant's affidavit in lieu of examination-in-chief till the date of completion of the arguments, the roznama does not indicate that the learned Magistrate directed the complainant to cure the defect in his affidavit of evidence. Moreover, in the impugned judgment and order, the learned Magistrate observed that the accused's defence and evidence were not sufficient to rebut the presumption under Section 139 of the NI Act, yet without considering other aspects of the matter, he acquitted the accused for the complainant's non-compliance of section 297 of the Code of Criminal Procedure, 1973 (CrPC).

Section 145 of the NI Act, being a special provision, allows the complainant to conduct his examination-in-chief on an affidavit. Only after the examination-in-chief is done can the accused cross- examine the complainant. The fact that the learned Magistrate permitted the accused to cross-examine the complainant would mean that the complainant's affidavit of examination-in-chief was accepted as the way it was tendered and treated as proper. Thus, the learned Magistrate could not have acquitted the accused based on only ground that the affidavit was not sworn when, in fact, he endorsed that affidavit as 'filed' instead of returning it to the complainant to cure the defect and permitting the accused to cross- examine the complainant.

Before passing the impugned judgment and order, the learned Magistrate ought to have considered that there was a lapse on the part of the complainant's advocate in guiding him on the procedural aspects. The complainant should not have to suffer due to the improper legal assistance rendered by his advocate, which could have been easily remedied by giving appropriate directions. Once the complainant files an affidavit of examination-in-chief, and if the same is defective, it is the duty of the Magistrate to return the affidavit and direct the complainant to rectify the defect.

A Magistrate is expected to be vigilant and not a silent spectator while conducting a trial. Judgment passed by the learned Metropolitan Magistrate, is set aside, and the matter is remitted to the learned Magistrate to give the complainant an opportunity to cure the defect and consider all other aspects of the case and, thereafter, decide the matter afresh in accordance with the law. Appeal disposed off.

Tags : Acquittal Defect Curing of

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