The Orissa High Court has rejected a petition which had challenged the judicial propriety of an impugned order of the J.M.F.C., Bhubaneswar, and had further sought to quash on the grounds inter alia that the same is not tenable in law, and not in the interest of justice. A bench of Justice R.K. Pattanaik heard the matter.

According to the petitioner, for the purposes of Section 138 of the Negotiable Instruments Act, 1881, the Court could not have received the second lot of affidavits filed by the complainant as affidavits were already filed at the beginning of the complaint.

Advocate Bansidhar Baug appeared for the petitioner and Advocate Swapna Kumar Ojha appeared for the respondent.

In the instant case, the complainant (respondent) had filed a complaint after the cheques said to have been issued by the petitioners stood dishonored due to insufficiency of funds. The complaints supported by affidavits were filed, considering which, the S.D.J.M., Bhubaneswar took cognizance of the offence under Section 138 of the N.I. Act and thereafter, summoned the petitioner.

However, at the commencement of the trial, affidavits as evidence were filed by the complainant, which became the subject matter of dispute, as the petitioner vehemently contended it on the ground that it cannot be accepted as affidavits have already been filed, based upon which the court proceeded and had taken cognizance of the offence under Section 138 of the N.I. Act.

It was contended by the petitioner that since the court rejected his applications on the ground that the initial affidavits were received for and at the time of taking cognizance of the offence and thereafter, the affidavits by way of evidence were filed which is in conformity with Section 145 of the N.I. Act.

While the respondents justifying the impugned orders argued that the affidavits have been filed as evidence and the court has accepted them, and that has nothing to do with the initial affidavits which were submitted with the complaints while seeking an action against the petitioner.

The Court citing Indian Bank Association and Others v. Union of India and Others (2014) 5 SCC 590, opined, “ the Supreme Court held that Section 145 of the N.I. Act provides complete freedom to the complainant either to give his evidence by way of affidavit or by oral means and the court has to accept the same even if it is in the form of an affidavit… In the said decision, it has been further observed that the affidavit and documents filed along with complaint for taking cognizance of the offence are good enough to be read as evidence at both the pre-summoning and post-summoning stages”.

While rejecting the argument of the petitioner and holding that the authorities and the decisions relied upon by the counsel do not make it appear that the complainant (respondent) is debarred from filing such affidavit evidence, the Court further held, “The initial affidavits if at all received by the learned court below along with the complaints, it was and may be said to be for a limited purpose to set the criminal action into motion and thereafter, at the stage of trial any such affidavit so furnished in the shape of evidence is to be entertained as it does not debar the court from accepting it. According to the Court, it is one thing to say that an affidavit filed and received by the court initially may be treated as evidence and is good enough for the purpose of trial and altogether different to claim that affidavit evidence in terms of Section 145 of the N.I. Act, if it is filed by the complainant despite an affidavit submitted along with complaint, the same cannot be accepted since there is already an affidavit on record”.

Cause Title: Harihar Mishra and Anr. v. M/s. Acrux Realcon Pvt. Ltd

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Justice R.K. PattanaikOrissa High CourtSection 138 of Negotiable Instruments Act

Agatha Shukla