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2021 (3) TMI 490 - BOMBAY HIGH COURTDishonor of Cheque - rejection of application for discarding evidence of accused and for directions to the accused to lead oral evidence - Section 138 of the N.I. Act - HELD THAT:- The question, whether an accused in proceedings under Section 138 of the N.I. Act is entitled to file an Affidavit in-lieu of Examination-inChief or not, is no more res-integra. The Hon’ble Supreme Court in the case of Mandvi Co-op. Bank Ltd. Vs. Nimesh B. Thakore [2010 (1) TMI 570 - SUPREME COURT] where it was held that In case the defence does lead any evidence, the nature of its evidence may not be necessarily documentary; in all likelihood the defence would lead other kinds of evidences to rebut the presumption that the issuance of the cheque was not in the discharge of any debt or liability. This is the basic difference between the nature of the complainant's evidence and the evidence of the accused in a case of dishonoured cheque. It is, therefore, wrong to equate the defence evidence with the complainant's evidence and to extend the same option to the accused as well. In view of the elucidation of law by the Hon’ble Supreme Court in the case of Mandvi Co-op. Bank Ltd., it is clear that, an accused in a proceedings under Section 138 of the Negotiable Instruments Act cannot be permitted to file an Affidavit-of-Evidence in lieu of Examination-in-Chief. The respondent Nos.2 and 4 herein cannot be permitted to file an Affidavit-of-Evidence in-lieu of Examination-in-Chief - Petition allowed.
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