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TMI Blog2023 (4) TMI 1335X X X X Extracts X X X X X X X X Extracts X X X X ..... h the application filed by the petitioner under Section 315 Cr.P.C. read with Section 145(2) of N.I. Act has been dismissed. 2. Brief facts of the case are that the complainant filed a complaint before the Metropolitan Magistrate under Section 138 of N.I. Act with regard to dishonouring of Cheque No. 000234 dated 21.09.2016 drawn on DCB Bank, Branch Jodhpur for a sum of Rs. 5,00,000/-. During the trial, the respondent no.1 Rahul Jain examined himself in evidence and documents were also filed. After examination of complainant, the petitioner accused filed an application under Section 315 Cr.P.C read with Section 145(2) of N.I. Act stating therein that in his defence, he wants to give his evidence on affidavit. 3. After considering the argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel for the respondent also drew the attention of this Court to the judgment rendered by the Hon'ble High Court of Gujarat in the case of Soni Anilkumar Prahladbhai vs. State of Gujarat (R/Special Criminal Application No. 4888 of 2022, decided by the Hon'ble Gujarat High Court at Ahmedabad on 06.06.2022). 6. Heard the learned counsel for the parties and perused the orders impugned so also the record. 7. In the first instance, it is relevant to quote Section 145 of Negotiable Instruments Act :- "145. Evidence on affidavit.- (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hyam Garg v. Naresh Kumar Gupta reported in 2010 Cr.L.J. 2819. Hon'ble Court in the aforesaid case observed thus:-- "Under S. 145 of the Code subject to just exception may allow the complainant to give evidence by way of affidavit. Such an evidence by way of affidavit had been made admissible in evidence in any enquiry, trial or other proceedings under the Code. Whereas Sub-section (1) of S. 145 uses the term 'may' Sub-section (2) thereof uses the term "shall". The first part of the aforementioned provision must be read with Sub-section (1) of S. 145. It therefore merely points out to the discretionary power of the Court conferred upon it by reason thereof. The Court however has no other option but to summon and examine any pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 143 (sic 145) it is clear that the legislature provided for the complainant to give his evidence on affidavit and did not provide for the accused to similarly do so. But the High Court thought that not mentioning the accused along with the complainant in sub-section (1) of section 145 was merely an omission by the legislature that it could fill up without difficulty. Even though the legislature in their wisdom did not deem it proper to incorporate the word `accused' with the word `complainant' in section 145(1), it did not mean that the Magistrate could not allow the accused to give his evidence on affidavit by applying the same analogy unless there was a just and reasonable ground to refuse such permission. There are two er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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), laid down the directions in para-23 which are as follows: "23. Many of the directions given by the various High Courts, in our view, are worthy of emulation by the Criminal Courts all over the country dealing with cases under Section 138 of the Negotiable Instruments Act, for which the following directions are being given:- 23.1. The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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