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CS Professional · Banking and Insurance - Laws and Practice · Payment and Collection of Cheques and Other Negotiable Instruments

In a section 138 trial, the complainant, Anand Finance, files its evidence by affidavit. The accused, Vikas Rao, wants to test the facts in that affidavit. Under section 145, what is the position?

The court must summon and examine the person who gave the affidavit if the accused applies. Section 145(2) gives the court discretion on its own motion, but makes summoning mandatory on the application of the prosecution or the accused.

  1. AAffidavit evidence is inadmissible, as oral evidence is mandatory in criminal trials
  2. BThe court may summon and examine the deponent, and must do so if the accused appliesCorrect
  3. CThe court may summon the deponent only when the complainant agrees
  4. DThe affidavit is conclusive and the deponent cannot be examined

Explanation

Section 145(1) allows the complainant's evidence to be given on affidavit and read in evidence, subject to just exceptions. Section 145(2) lets the court summon and examine the deponent if it thinks fit, and requires it to do so on the application of the prosecution or the accused. Vikas's application therefore compels examination.

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