SHELATKAR CONSTRUCTION PVT LTD Vs. CREATIVE ENTERPRISES

JUDGEMENT

(1.) Heard Mr. Marwadi, the learned Counsel for the common petitioners in all these three petitions and there is a common grievance. They are being decided by this common order.

(2.) The petitioners are the accused in three different criminal cases filed by the respondent No. 1 before the learned Metropolitan Magistrate, Mumbai and they are registered as C. C. No. 710/ss/2006, c. C. No. 711/ss/2006 and 712/ss/2006. During the trial of all these complaints, the complainant through its partner Mr. Narsiha N. Patel filed an affidavit by way of evidence in examination-in-chief. Alongwith the same certain documents were brought on record. The accused therefore, filed separate applications for an order to issue summons to the accused and to examine him for recording his examination in chief with regards to the facts stated by him in the affidavit. A reliance in this regard was placed on the provisions of section 145 (1) of the Negotiable Instruments Act, 1881. These applications filed in all the three complaints came to be rejected by the learned Metropolitan Magistrate on or about 18. 7. 2007 and hence, these petitions challenging the said order.

(3.) The learned Metropolitan Magistrate held that the evidence in the form of affidavit is subject to cross-examination under section 145 of the Negotiable Instruments act and all omissions and contradictions can be brought on record during the course of the cross-examination and therefore, there is no question of causing prejudice to the petitioners. The learned Metropolitan magistrate also held that when the provisions of section 145 of the Act permitted to lead evidence by way of an affidavit and which the petitioners have exercised, they cannot be called upon contrary to the provisions of the said section to enter into the witness box and to lead evidence on the facts stated in the affidavit.