LAKHAN SINGH Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) MR . Vivek Shukla, Advocate for the petitioner. Mr. Nandan Arya, A.G.A. for the State.

(2.) THIS petition u/s 482 Cr.P.C. has been filed for quashing and setting aside the entire proceeding in Criminal Complaint Case No. 68 of 2007 Smt. Mridula Chaudhary Vs. Lakhan Singh u/s 138 N.I. Act, Police Station Kotwali Haridwar, District Haridwar pending in the Court of Special Judicial Magistrate 2nd, Haridwar.

(3.) THE respondent No. 2 filed a complaint against the petitioner before the trial court u/s 138 of N.I. Act. Thereafter, cognizance was taken. The learned Magistrate after recording the statement on 10/11/2008, fixed the date for the evidence of the complainant on 03/12/2008. On 03/12/2008, the Presiding Officer has himself written in the ordersheet that the complainant has filed two affidavits and the copies have been given to the other side. Thereafter, the case was fixed for the cross examination of the witnesses on 18/12/2008. The accused did not appear and sought exemption from his attendance. The case is still pending for the cross examination of the complaints witnesses. The learned counsel for the petitioner further contended that the complainant had filed the affidavits in absence of the accused and the document has been exhibited by the complainant himself and the same is not admissible in evidence. Section 145 of the N.I. Act provides 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. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein."