IN THE COURT OF SH. RAKESH KUMAR SINGH: METROPOLITAN MEGISTRATE (NI ACT)-1, CENTRAL:ROOM NO.-42, TIS HAZARI COURT COMPLEX, DELHI

Harish Chand Vs. Ms. Saira Khatoon

CC No.6687/12

16.05.2012

Present: Complainant with counsel.

ORDER

All the ingredients of offence are available in the present case. Therefore, I take cognizance

of the offence punshible under Section 138 NI Act against accused No.1.

2. By virtue of Section 145(1) NI Act, the complainant can lead evidence by way of affidavit

which can be read in enquiry, trial or other proceeding. It reads as under:

“145. Evidence on affidavit.-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2

of 1974), the evidence of the complainant may be given by him on affidavit and may,

subject to all just exceptions be read in evidence in any enquiry, trial or other

proceeding under the said Code.”

3. The question, however, relates to the mode and manner of making and filing of affidavit.

The traditional practice which is being followed is the following:

Complainant makes an affidavit before Oath Commissioner or Notary Public by taking oath

in respect of his evidence and also indicates in the affidavit all his documents as Ex.CW1/1,

Ex.CW1/2 and onwards. Then he brings the said affidavit in court where he is to lead evidence. He

again takes oath and tenders his affidavit in evidence by examining himself as CW1 and says that

he is relying upon Exhibits such and such i.e. all such documents exhibited in his affidavit.

Thereafter, the presiding officer of the Court signs all the documents as per exhibits.

4. To say the least, the traditional practice is wrong. Reason is very simple.

Rule-9 of Chapter-XVIII, Part-6 of Delhi High Court Rules provides as under:

9. Marking, dating and initiating on exhibits—Every exhibit annexed to an

affidavit shall be marked, initialled and dated by the authority before whom it is

sworn.

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Part-1, Order-XI, Rule-9 of Supreme Court Rules, 1966 also provides for the similar

position. It reads as under:

“9. Every exhibit annexed to an affidavit shall be marked with the title and

number of the cause, appeal or matter and shall be initialled and dated by the

authority before whom it is sworm.”

4.1. Rule-7 of Chapter-XVIII, Part-6 of Delhi High Court Rules provides for the making of

affidavits. It reads as under:

“7. Before whom affidavits are to be sworn—Affidavits for the purposes of any

cause appeal or matter before a Notary or any authority mentioned in Section 139 of

the Code or before the Registrar of the Court, or before the Commissioner generally or

specially authorised in that behalf by the Court. The authority attesting any such

affidavit shall wherever the person is know to him, append a certificate to that effect

on the affidavit and where the person affirming the affidavit is not known to the

authority concerned the certificate shall state the name of the person by whom the

person affirming the affidavit has been identified. Wherever an affidavit is affirmed by

an illiterate person or a person not conversant with the English language, the authority

concerned shall before attesting the same translate and interpret the contents of the

affidavit to the person affirming the same and certify the said fact separately under his

signature.”

4.2. In criminal procedure, Sectioin 297 CrPC provides for the authorities before whom an

affidavit can be sworn. It reads as under:

297. Authorities before whom affidavits may be sworn.

(1) Affidavits to he used before any court under this Code may be sworn or affirmed

before-

(a) Any Judge or any Judicial or Executive Magistrate, or

(b) Any Commissioner of Oaths appointed by a High Court or Court of Session, or

(c) Any notary appointed under the Notaries Act, 1952 (53 of 1952).

(2) Affidavits shall be confined to, and shall state separately, such facts as the

deponent is able to prove from his own knowledge and such facts as he has reasonable

ground to believe to be true, and in the latter case, the deponent shall clearly state the

ground of such belief.

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(3) The court may order any scandalous and irrelevant matter in the affidavit to be

struck out or amended.”

4.3. Clearly, if we see Rule-9, Chapter-XVIII, Part-6 of Delhi High Court Rules we can say

that documents have to be marked as exhibit and to be initialled and dated by the authority before

whom affidavit is sworn. In district courts, affidavits are normally sworn before Oath Commissioner

or Notary Public. It is, therefore, necessary that all the documents mentioned in the affidavit should

be marked, initialled and dated by such Oath Commissioner or Notary Public. Any contrary practice

can only be against the Delhi High Court Rules.

4.4. Once, documents are exhibited in accordance with the rules, the affidavit becomes a

complete evidence subject to all just exceptions unless the deponent is recalled by virtue of Section

145(2) NI Act. Till then, the deponent is not required to come in the witness box for any reason.

Formal tendering of affidvit is not recognized by law and even the same is not requied from any

angle.

4.5. A Division Bench of Hon'ble High Court of Delhi in Maj V. Ravindran vs Cavalier

Coaching & Security Networks Pvt Ltd. FAO (OS) 62/2011 decided on 13.07.2011 has held that:

“Formal tendering of the affidavit by way of evidence, on any consideration, is a

surplusage which if adhered to will lead to delay and will therefore nullify the

objective of the amendment to the CPC. Order XVIII Rule 4 does not contemplate the

tendering of the affidavit; the proviso to sub-rule(1) makes the admissibility of the

documents filed along with the affidavit subject to the orders of the Court and does

not make the affidavit subject to such orders. Further, sub-rule(2) speaks of cross-

examination and re-examination only to be taken by the Court or the Commissioner

appointed by it. We emphasise that the CPC does not prescribe that the Examination-

in-Chief of affidavit as contemplated by sub-rule(1) must be tendered before such

Court or Commissioner. Thereafter no tendering is required as the affidavit substitutes

and replaces the erstwhile Examination-in-Chief of witness recorded by the Court

itself.”

5. I see no reason why the above ratio should not be applied in respect of an affidavit to be

filed as evidence in a criminal trial. There is no difference between an affidavit made for evidence

in criminal trial and an affidavit made for evidence in a civil trial. Both the affidavits are made on

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the same footing and used for the same purpose. Section-297 CrPC or Section-145(1) NI Act do not

contemplate any tendering of affidavit in evidence. After cognizance, whenever the need arises, the

complainant can simply file his affidvit for the purpose of Section-200 CrPC r/w Section-145(1) NI

Act.

5.1. Clearly, there is no necessity of formal tendering of any affidavit. Rather, such tradition is

only wasting precious judicial time.

5.2. Rule-9, Chapter-XVIII, Part-6 of Delhi High Court Rules and above cited judgment are

guiding factors. Oath Commissioner and Notary Public are duty bound to mark, initial and date all

the documents mentioned in the affidavit.

6. A contention may be raised that complainant may file a document which is not admissible in

evidence. I consider that Marking of documents does not provide them any status of being

admissible or proved. It is the sole prerogative of the Court to decide the question. Section-145(1)

NI Act is also cauched in the same manner empowering the Court to decide the admissibility or

proof. Hon'ble Supreme Court in M/s Mandvi Co-op Bank Ltd vs Nimesh B thakore, (2010) 3

SCC 83 has taken note of such contention as under:

“Section 145 with its non-obstante clause, as noted above, makes it possible for the

evidence of the complainant to be taken in the absence of the accused. But the

affidavit of the complainant (or any of his witnesses) may be read in evidence “subject

to all just exceptions”. In other words, anything inadmissible in evidence, e.g.,

irrelevant facts or hearsay matters would not be taken in as evidence, even though

stated on affidavit.....

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Mr. Ranjit Kumar next submitted that in giving evidence on affidavit, the deponent

(the complainant or any of his witnesses) can introduce hearsay or irrelevant facts in

evidence to which the accused could have objected if the deposition was made in

court as examination-in-chief. Hence, the accused must have the right to call the

complainant (or his witness giving evidence on affidavit) into the witness box for

examination-in-chief so as to get the inadmissible parts in the affidavit excluded from

his evidence. Once again the submission is devoid of merit. It is noted above that the

evidence given on affidavit by the complainant is “subject to all just exceptions”. This

simply means that the evidence given on affidavit must be admissible and it must not

include inadmissible materials such as facts not relevant to the issue or any hearsay

statements. In case the complainant’s affidavits contain statements that are not

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admissible in evidence it is always open to the accused to point those out to the court

and the court would then surely deal with the objections in accordance with law.”

7. However, there may be several practical difficulites. Some solutions are provided

hereinafter:

i. Office should accept the complaint alongwith copies of all documents and

not originals (after all, Section-142 NI Act only talks about a written complaint and

not documents);

ii. If affidavit is enclosed with the complaint, the office whould request for

original documents duly exhibited by the Oath Commissioner or Notary Public as the

case may be and in case of non-compliance, the office may request the party to file

affidavit in the Court (but the same shall not be a ground to return the complaint);

iii. Necessary instructions may be issued to all the Oath Commissioners and

Notary Publics to comply with Rule-9 (who shall also clearly see whether they have

accepted any copy as exhibit after seeing the original or otherwise);

iv. Necessary intimation may also be given to the Bar Associations bringing to

their notice the requirement of Rule-9 and that defective affidavits shall not be

accepted.

v. Necessary inimation may also be provided to all such Courts(dealing with

affidavit in evidence).

8. It has been brought to the notice that the practice of filing affidavit with documents duly

exhibited by the Oath Commissioner or Notary Public is being followed in Saket District Court. I

see no reason why the same should not be followed in entire Delhi.

9. Hon'ble Mr. Justice MADON in Central Inland Water vs Brojo Nath Ganguly & Anr

1986 AIR SC 1571 has observed that:

“The cycle of change and experiment, rise and fall, growth and decay, and of progress

and retrogression recurs endlessly in the history of man and the history of civilization.

T.S. Eliot in the First Chorus from "The Rock" said : "O Perpetual revolution of

configured stars, O Perpetual recurrence of determined seasons, O world of spring and

autumn, birth and dying! The endless cycle of idea and action, Endless invention,

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endless experiment". The law exists to serve the needs of the society which is

governed by it. If the law is to play its allotted role of serving the needs of the society,

it must reflect the ideas and ideologies of that society. It must keep time with the

heartbeats of the society and with the needs and aspirations of the people. As the

society changes, the law cannot remain immutable. The early nineteenth century

essayist and wit, Sydney Smith, said, 'Then I hear any man talk of an unalterable law,

I am convinced that he is an unalterable fool." The law must, therefore, in a changing

society march in tune with the changed ideas and ideologies.”

10. So far as this Court is concerned, from now onwards only such affidavit can be accepted in

evidence where the annexed documents are marked, initialed and dated by the authority before

whom the affidavit has been sworn.

11. It appears that instructions to Oath Commissioners and Notary Public can be issued by the

Ld. District & Sessions Judge, Delhi and the filing counter pertaining to the criminal courts is under

the crontrol of Ld. CMM, Delhi(subject to overall control of Ld. District & Sessions Judge). The

above discussion and solutions(Para-7 supra) to be considered by the higher authorities. As such, let

a copy of this order be sent to the Ld. District and Sessions Judge, Delhi and Ld. CMM, Delhi with

a request for consideration.

12. Matter to be listed for pre-summoning complainant's evidence on 29.05.2012.

13. A copy of order be placed on the official website of the District Courts.

(Rakesh Kumar Singh)MM/16.05.2012

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