Sec. 138 - Evidence of Accused through Affidavit whether permissible

2010(1) CURRENT TAMILNADU CASES – Page 693 – SUPREME COURT

Negotiable Instruments Act, 1881 (26 of 1881), Section 145 – Can complainant’s witness be compelled to depose in chief-examination after adducing evidence on Affidavit – Sections 143 to 147 of Negotiable Instruments Act establishes simplified procedure for trial of cases relating to dishonored cheques and such procedure is intended to be swifter that summary trials – Affidavit filed by complainant’s witness on evidence constitutes examination-in-chief and he can be summoned and subjected to cross-examination only – Complainant can summon such witness for re-examination only – Complainant can summon such witness for re-examination – Such witness filing affidavit on evidence can be summoned on objection regarding validity, sufficiency of proof of documents submitted along with affidavit on evidence.

Person accused of an offence under Section 138 of cannot give evidence on affidavit – There is difference between nature of complainant’s evidence of accused in case of dishonoured cheque – Defence evidence cannot be equated with complainant’s evidence and accused cannot give evidence on affidavit in dishonoured cheques.

Fresh Suit barred

2012 (2) CURRENT TAMILNADU CASES – Page 543

Order 9 Rules 9 and 8 of CPC – Decree against Plaintiff by default bars fresh suit – Plaintiff filed suit for permanent injunction – Plaintiff predecessor in title had already filed similar suit against defendant and same was dismissed for default – Held, any suit is dismissed for default, plaintiff is precluded from bringing fresh suit on same cause of action – Whether bar created under Order 9 Rule 9 of CPC would also be applicable to assignee or a transferee of plaintiff who instituted earlier suit and dismissed for default – Bar under Order 9 Rule 9 can be invoked against legal representative or assignees or transferees of plaintiff, who filed earlier suit.

Criminal Procedure Code - Return of Property - Precedents

1. ALL INDIA REPORTER 2003 – Page 638 – SUPREME COURT

Criminal Procedure Code, 1973 - Section 451 - Indian Penal Code, 1860 - Section 429, 420, 465, 468, 477(a), 114 - Property in custody disposed during pending cases - Various articles kept at police station for long period were alleged - Misappropriation of cash - Replacement of muddamal articles with spurious ones - For evolving suitable procedure to prevent misappropriation and replacement, court directions were sought - Held, for disposal of muddamal articles, some broad guidelines and procedures to be followed - Directing magistrates to ensure powers under s. 451 are property and promptly exercised - Articles kept in the police stations not more than fifteen days to one month in any case - Rules framed by high court to be supervise by high court registry and its property implementation. 

2. 2010(6) SUPREME COURT CASES – Page 768

Criminal Procedure Code, 1973, Sections 451,457 -Motor Vehicles Act, 1988, Section 158(6) - Central Motor Vehicles Rules, 1989, Section 159 - Motor Vehicles - Seized vehicles involved in commission of various offence - National waste while in custody of Police - Contention that earlier direction issued by the Apex Court in Suderbhai Ambalal Desai case are not complied with by the prosecuting agency - Considering the mandate of Section 451 read with Section 457 Cr.P.C. further direction with regard to seized vehicle given.

3. 2011(1) MADRAS WEEKLY NOTES (Criminal) – Page 437

Criminal Procedure Code, 1973 (2 of 1974), Section 451 – Return of Vehicles and sale thereof – Petitions seeking grant of permission to sell vehicles seized by Police in connection with Criminal cases – Contention, placing reliance on Apex court decision in Sunderbhai Ambalal Desai, that it was not necessary to hold vehicles at Police Stations and courts till trial in cases were completed – That, vehicles held at Police stations and court campuses are allowed to rust – Following Apex court decision, held return of vehicles and permission for sale should be general norm – Evidence relating to vehicles can be held in altered form – causing of photographs and resort to videography together with recording such evidence as befits a particular case would well serve purpose – Where return of vehicles is sought and claim is highly contested, resort to sale of vehicle and credit of proceeds in fixed deposits pending disposal of case would be to common good – None gain when mere shell or remnants of vehicles returned after completion of trial – criminal courts directed to follow decision of Apex court in Sunderbhai in true letter and spirit.

4. 2012(2) CURRENT TAMILNADU CASES – Page 549

Criminal Procedure Code, 1973 (2 of 1974), Section 451 & 452 – Release of Vehicles involved in crimes – Accused filed petition to release lorry involved in crime pending trial – Judicial Magistrate dismissed petition on ground that lorry was materially needed during course of trial and investigation – Whether principle laid down by Supreme court in Sunderbhai case for release of vehicles can be extended in respect of petitions filed by Accused persons seeking custody of vehicles – Whether secondary evidence can be permitted to lead in lieu of production and marking of vehicles – Held, power of confiscation provided under criminal procedure code is not meant to be used as exercise of penal power – Confiscation cannot be ordered as measure of punishment – In absence of any specific provision of law providing for confiscation of vehicles order confiscating vehicles would amount to imposing second punishment not having sanction of law – Routinely ordering confiscation of property involved in crime by trial courts without any enquiry is not proper – Vehicles should be returned to its owner even if such persons are accused – Power of confiscation provided in Section 452 of Cr.P.C – Trial courts should make all efforts to avoid holding of vehicles at court and police stations and dispose of petition seeking return of vehicles forthwith – Trial courts shall take best efforts to return vehicles involved in crimes to owners of vehicles after causing necessary Photographs and Panchnama – Directions issued to all Sessions/Metropolitan/Judicial Magistrate to adhere procedure laid in Judgment.