R.N. Laddha JUDGMENT
R.N. Laddha, J.
1. The challenge in this Appeal is to the Judgment and Order dated 22 August 2006 passed by the learned Metropolitan Magistrate, 6th Court, Mazgaon, Mumbai, in CC No.2133/SS/2005, 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 (for short, 'the NI Act').
2. The facts of the case are rather peculiar. The accused/ respondents No.1 and 2 are acquitted on the ground that the affidavit in lieu of examination-in-chief was neither verified nor sworn before the Commissioner of Oath or the Court as contemplated under Section 297 of the Code of Criminal Procedure, 1973 (for short, 'the Code').
3. On 11 March 2005, the appellant filed a criminal complaint bearing No.2133/SS/2005 under Sections 138 read with 141 of the NI Act for dishonour of cheques bearing Nos.972122, 972135, and 972144 for a total sum of Rs.8,00,000/-. The learned Magistrate took cognisance of the offence and summoned the accused, and on their appearance, the particulars of the offence were read over and explained to them. The accused abjured their guilt and claimed trial.
4. During the trial, the complainant/ appellant filed an affidavit of examination-in-chief. This affidavit was not sworn before the competent authority and stated that the accused issued three cheques totalling Rs.8,00,000/- to discharge their liability. On presentation of these cheques, they were returned unpaid due to insufficient funds. The complainant issued a statutory notice through his advocate, which the accused received. The accused replied to this notice but did not make the payment. Based on this affidavit of the examination-in-chief, the accused cross-examined the complainant.
5. After appraisal of the evidence and the documents on record, the learned Magistrate was persuaded to acquit the accused. By the impugned judgment and order dated 22 August 2006, the learned Magistrate acquitted the accused on the ground that the complainant's affidavit of examination-in-chief was defective and not in consonance with section 297 of the Code. Being aggrieved and dissatisfied thereby, the complainant has preferred the present appeal.
6. I have heard Mr. Sumit Kothari, the learned Counsel for the appellant; Mr. HR Desai, the learned Counsel for respondents No.1 and 2; and Mr. AD Kamkhedkar, the learned Additional Public Prosecutor for respondent No.3/State; and perused the impugned judgment, grounds in appeal memo, evidence, and material on record.
7. Mr. Sumit Kothari, the learned Counsel for the appellant, submitted that the affidavit of evidence of the complainant was filed in the presence of the learned Magistrate; thereafter, the complainant was cross-examined by the accused. He further submitted that during the cross-examination, the accused did not question the complainant as to why the affidavit was not sworn, and the entire trial proceeded on the basis of the affidavit of evidence being proper. He contends that for want of proper legal guidance, the complainant should not suffer as the Code being procedural, technical defects ought not to come in the way of substantial justice. To support his contentions, he relied upon (i) Owners and Parties Interested in M.V. Vali Pero Vs. Fernandeo Lopez MANU/SC/0395/1989 : (1989) 4 SCC 671; (ii) Bijoy Shankar Mishra Vs. The State of Jharkhand1; (iii) Jan........