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TMI Blog2020 (3) TMI 1473X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Towards the discharge of that legally enforceable debt, a cheque dated 22.11.2004 was issued to him. The cheque on presentation was returned dishonoured. A statutory notice was issued, which was replied. Alleging that, by non payment of the money covered by the cheque, accused has committed an offence punishable under section 138 of the Negotiable Instruments Act, complainant approached the court below by filing the criminal complaint. Accused appeared and contested the proceedings. On the side of the complainant, PW1 was examined and Exts.P1 to P13 were marked. Accused got himself examined as DW1 and Ext.D1 to D9 were marked. The court below, on an evaluation of the rival materials concluded that, PW1 failed to establish that the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted by the court below and the accused was cross examined by the counsel for the complainant. 6. The contention set up by the appellant was that, the examination of the accused by filing an affidavit in lieu of the chief examination was illegal and was not authorized by the statute. It was contended that, section 145 of the Negotiable Instruments Act permitted the complainant and his witnesses to be examined in chief by filing the proof affidavits. This was not statutorily extented to an accused, it was contended. Consequently, acceptance of the evidence of the accused in chief examination by accepting of the proof affidavit was illegal and hence, evidence so tendered by the accused was liable to be eschewed, it was contended. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er trial by way of remand. Hence the counsel for the accused pleaded that, remand of the matter was liable to cause prejudice to both sides. 8. Section 145(1) and (2) of the NI Act provides as follows: 145(1) :- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. (2) :- The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. According to the complainant, statute permits tendering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilarly do so. It was held that the view taken by the High Court that non mentioning of the accused along with the complainant in subsection (1) to section 145 was merely an omission by the legislature that it could fill up without difficulty was not correct. It was held that, in a large number of cases, the accused may not lead any evidence at all and let the prosecution stand or fall on its own evidence. 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 discharge of any debt or liability. The Supreme Court held that, this was the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it seems that, Gujarat High Court has taken a different view in Rakeshbha Imaganbhai Barot v. State of Gujarat (2019(1) Crimes 575)(Guj). In that case, interpreting section 145 of the Act, it was held that, if evidence of witnesses could be by way of affidavit in terms of section 145 of Act, evidence of accused could also be by way of affidavit. This judgment was rendered by the Single Judge without following the binding precedent in Mandvi Coop. Bank Ltd.'s case (supra). To that extent, above decision is not sustainable and is liable to be ignored. 13. It is seen that, in Indian Bank Association's case (supra) specific question regarding the various provisions of the amendments made was taken up for consideration before the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand the matter taking note of the fact that the offences were committed almost 20 years prior to the decision. Relying on the above decision, learned counsel for the accused contended that, if at all this Court found that, there was any violation in the statutory provision in accepting the evidence in chief, this Court should refrain from ordering remand. 15. I am not attracted by the submission made by the learned counsel for the accused. If the acceptance of the affidavit in chief of the accused was illegal and not authorized by law, interest of justice demands that accused should be given one more opportunity to tender the evidence, if he so chooses. Necessarily, remand will be only natural consequence to such finding. 16. After havin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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