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TMI Blog2020 (9) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... y the applicant under Section 145 of Negotiable Instruments Act for submitting affidavit of chief examination. 2. The facts giving rise to this petition, in short, are that the respondent who was complainant before the trial Court submitted a complaint under Section 138 of Negotiable Instruments Act against the applicant stating therein that the applicant gave a cheque amounting to Rs. 4,25,000/- in lieu of payment of goods and services availed by the applicant. When the respondent submitted that cheque in bank, the bank dishonoured that cheque and returned with an endorsement of 'insufficient amount' in the bank account of the applicant. After serving notice, when applicant failed to pay the amount within stipulated period, the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llow this petition. 6. Having heard learned counsel for the parties. 7. Hon'ble Apex Court in the case of Mandvi Cooperative Bank Limited (supra) categorically held that right to give evidence on affidavit is not available to the accused. This Court in the case of Suresh (supra) after referring the provisions of Section 145 of Negotiable Instruments Act held that it is the complainant who can give evidence on affidavit not accused and set aside the order of the trial Court for permitting the accused to file affidavit under Section 145 of NI Act. Learned trial Court on the basis of above preposition of law, disallowed the applicant for giving evidence on affidavit. 8. Hon'ble Apex Court in the case of Indian Bank Association and others (s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for re- calling a witness for cross-examination." 23.5. The Court concerned must ensure that examination-in-chief, cross- examination and re-examination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses instead of examining them in the Court. The witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and that affidavit can be considered during whole trial as evidence. Section 145(2) of Negotiable Instruments Act permits the parties to request the trial Court for calling the witnesses for cross-examination personally. 13. No doubt, Hon'ble Apex Court in the case of Mandvi Co-operative Bank Limited (supra), clearly held that accused cannot be permitted to file affidavit under Section 145(1) of Negotiable Instruments Act. However, Hon'ble Apex Court in the case of Indian Bank Association and others (supra) after discussing the judgment passed in the case of Mandvi Co-operative Bank Limited (supra), permitted the accused and witnesses for giving evidence on affidavit, but it is the trial Court having option of accepting that affidavit in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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