Criminal Application No.1134 of 2008

8th August, 2008

Petitioner Counsel: Mr. M. V. SWAR
Respondent Counsel: Mr. D. P. ADSULE,Mr. VIRENDRA H. PARIKH

Cases Cited:
Associated Journals Limited Vs. Mysore Paper Mills Ltd., (2006)6 SCC 197 [Para 4,9]
Suryakanta Vs. Rahul, 2004 ALL MR (Cri) 2494=I(2005) DMC 199 [Para 4,7]
Nandakumar Shankar Mhatre Vs. Dayanand Mahadev Mhatre, 1989(1) Bom.C.R. 112 [Para 5,8]
A.K.K. Nambiar Vs. Union of India, AIR 1970 SC 652 [Para 5,8]

JUDGMENT

JUDGMENT :- The applicant has challenged the order of the Metropolitan Magistrate, 23rd Court, Esplanade, Mumbai dated 13.8.2007, refusing to permit the applicant to insert the verification clause in the affidavit filed by him in lieu of the examination-in-chief.

2. The facts in the present case are as follows :

The applicant filed a complaint under section 138 of the Negotiable Instruments Act against Respondent No.2 on 7.10.2002. The verification of the complainant was recorded on 18.8.2003. Process was issued thereafter on 8.12.2003 against Respondent No.2. The applicant filed an affidavit in lieu of examination-in-chief on 2.4.2004. On 13.10.2005, the respondent No.2 preferred an application before the Metropolitan Magistrate praying for an acquittal on the ground that the affidavit of evidence was not affirmed and because it was not appended with a verification clause. This application was rejected on 2.5.2006. The applicant then moved the Court for a de novo trial so as to enable him to file a fresh affidavit of evidence with the verification clause in order to cure the defect in the affidavit. This application was not pressed by the applicant and was withdrawn. The applicant then preferred an application on 18.9.2006 for permitting him to insert the verification clause without changing any averments in the affidavit of evidence. This application was opposed by Respondent No.2. After hearing the parties, the Metropolitan Magistrate has rejected the application preferred by the applicant. Aggrieved by this decision of the Metropolitan Magistrate, the applicant has filed the present criminal application u/s.482 of the Criminal Procedure Code. The petitioner had also preferred a Civil Revision Application against the order of the Metropolitan Magistrate which was dismissed by the Sessions Court as the order impugned was interlocutory.

3. The learned advocate for Respondent No.2 raised a preliminary objection regarding the maintainability of this application. He submits that the present application amounts to a second revision and therefore, it ought to be dismissed. Several judgments have been relied on by the learned advocate on this issue. However, a perusal of the order of the Sessions Court indicates that the revision was dismissed on the ground that the Court had no jurisdiction in view of the fact that the order impugned was not a final order but an interlocutory order. Therefore, the submission raised by the learned advocate objecting to the maintainability of the present application u/s.482 is unsustainable.

4. The only dispute now which remains to be determined is whether the applicant can be permitted to insert the verification clause in the affidavit in lieu of the examination-in-chief. Admittedly, there is no verification clause in the affidavit filed by the Respondent No.2. The learned advocate for the applicant submits that this is a curable defect and the applicant should be permitted to insert the verification clause so that no injustice is done to him. The application filed by the respondent for acquitting him has been dismissed as the Metropolitan Magistrate was of the view that the accused could not be acquitted in the midst of the trial. The learned advocate for the applicant submits that the application filed by the applicant for curing the defect in the affidavit of evidence ought to have been allowed by the learned Magistrate. He submits that it is well settled that if there is a slight defect or irregularity in filing an affidavit the party concerned should be given an opportunity to rectify the same. He bases reliance on the judgment of the Supreme Court in the case of Associated Journals Limited Vs. Mysore Paper Mills Ltd., (2006)6 SCC 197 in support of his contention. The learned advocate then refers to the judgment and order of a learned Single Judge of this Court in the case of Suryakanta & Ors. Vs. Rahul & Anr., I(2005) DMC 199 : [2004 ALL MR (Cri) 2494] wherein the Court was dealing with a case filed u/s.127 of the Cr.P.C. The learned advocate points out that under the Oaths Act, section 7 provides that an omission or irregularity of an oath or affirmation would not invalidate a proceeding or render inadmissible, evidence in respect of which such omission or irregularity has occurred.

5. On the other hand, the learned advocate for the respondent relied on the judgment of a learned Single Judge of this Court (A. D. Tated, J.) in the case of Nandakumar Shankar Mhatre Vs. Dayanand Mahadev Mhatre & Ors., 1989(1) Bom.C.R. 112 wherein he has taken the view that an affidavit without a verification clause or a defective verification cannot be admitted in evidence by relying on the judgment of the Supreme Court in the case of A.K.K. Nambiar Vs. Union of India, AIR 1970 SC 652.

6. The Supreme Court in the case of Associated Journals Limited was dealing with a Company Appeal filed from a Company Petition. The Supreme Court held that if an affidavit has some defect or irregularity, the same can be cured by giving an opportunity to the affiant to rectify the same. The Court observed that the Rules of Procedure cannot be a tool to circumvent justice. Technical pleas should not be allowed to defeat the ends of justice especially when raised after several years.

7. In the case of Suryakanta & Others [2004 ALL MR (Cri) 2494] (supra), the learned Single Judge (S.B. Deshmukh, J.) was dealing with a matter under section 127 of the Cr.P.C. It was found that the application filed had not been signed by the petitioner for herself or on behalf of the minors. The learned Judge was of the view that with the permission of the Court it was permissible under Order 6, Rule 15 of the Civil Procedure Code to include a verification if it did not find place in the affidavit as originally filed.

8. In the case of Nandakumar Mhatre (supra), the learned Judge has opined that a party cannot be permitted to amend the affidavit which has already been filed by him as such an affidavit cannot be amended. The learned Judge has placed reliance on the decision of the Supreme Court in AKK Nambiar's case (supra). The Supreme Court has observed that in essence a verification is required to enable the Court to determine whether it would be safe to act on such an affidavit of evidence. The Court then discarded all the affidavits as they lacked a proper verification clause. However, no application had been made for insertion of the verification in the affidavit, like in the present case.

9. In view of the decision of the Supreme Court in the case of Associated Journals Limited (supra), I am of the opinion that the application filed for including the verification clause must be allowed. It is a curable defect and the Court can permit the applicant to insert the verification clause in the affidavit of evidence. Undoubtedly, the cross-examination of the applicant has commenced. However, no objection was raised by Respondent No.2 at that stage prior to commencement of cross-examination. Apart from this, it would always be open for the applicant to lead oral evidence in support of his case. When this is the position, I do not see any reason why the applicant cannot be permitted to insert the verification clause in order to prevent an abuse of the process of law.

10. The application is allowed. The applicant shall insert the verification clause in the affidavit filed by him within two week from today. No other changes, corrections, amendments, modifications in the affidavit will be permitted.

11. Application is disposed of accordingly.

Ordered accordingly.