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TMI Blog2019 (1) TMI 2047X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred an application Exh. 128, which reads as under: "1) The present matter is at the stage of evidence of the accused. 2) The court has refused to accept the evidence of the accused on oath, therefore, it is necessary to file the present application. 3) This application is preferred relying upon the judgment dated 21.04.2013 delivered in the case of Banking Association V/s. Union of India, whereby all the courts of the country are directed to follow the instructions contained therein. "The Apex Court appreciating the efforts of Bombay and Kolkata High Courts for speedy disposal of 138 cases, finally laid down the following procedure to be observed by all criminal courts in the country for speedy and expeditious disposal of 138 cases. The essence of these procedures can be summarized as follows: "The Apex Court of the country has given directions to make speedy disposal of the complaints of Section-138 of the Negotiable Instrument Act. The said directions are mentioned at last in the judgment annexed herewith. I request the Ld. Court to go through the same. It is mentioned in the Para-5 that "Ld. Courts should accept the evidences of the witness on oath instead of recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Trivedi, the learned counsel appearing for the respondent no. 2 - original complainant. Mr. Trivedi would submit that no error, not to speak of any error of law, could be said to have been committed by the trial court in rejecting the application Exh. 128. Mr. Trivedi would submit that the decision of the Supreme Court in the case of M/s. Mandvi Cooperative Bank Limited (supra) is very clear. The Supreme Court has laid down the law that Section 145(1) of the Act confers right on the complainant to give evidence on affidavit, but there is no similar right conferred on the accused. In such circumstances referred to above, Mr. Trivedi prays that there being no merit in this application, the same may be rejected. 7. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is, whether the accused of a complaint under Section 138 of the Negotiable Instruments Act is entitled to lead his evidence on affidavit. 8. I am not impressed by the submission of Mr. Trivedi, the learned counsel appearing for the original complainant, that Section 145 of the Act excludes the accused and only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esult in penal consequences in certain situations. A reading of Chapter XVII of the Act also shows that the procedure prescribed has been made less cumbersome and more user friendly. Time is of essence in any commercial transaction, and it appears that being sensitive to this aspect, the Parliament legislated the said chapter in the Act. This is also clear from the reading of Sections 138, 139, 143, 144 and 146 of the Act. Section 138 creates the offence where the drawer fails to make payment of the amount of money covered by the cheque to the payee or the holder in due course, as the case may be, within 15 days of the receipt of the notice of dishonour, and the dishonour is for specified reasons. Section 139 raises a rebuttable presumption that the holder of a cheque received the cheque for the discharge, in whole or in part, of any, debt or other liability, Section 143 makes applicable the procedure of summary trials as prescribed in the Code. Section 143 (2) & (3) are very relevant and read as follows: "143. Power of Court to try cases summarily- (1).......................................... (2) The trial of a case under this section shall, so far as practicable, consisten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person giving evidence on affidavit...". 16. This is in consonance with the procedure prescribed for a Summary trial (which is the same as is specified for the trial of a Summons case, under the Cr.P.C. See: Section 262 Cr.P.C.). The procedure prescribed there under does not contemplate the accused standing as a witness. Though he may examine witnesses on his behalf. 17. Therefore, it is clear that having regard to the Scheme of the Cr.P.C., the Legislature in its wisdom has left it open to the accused to exercise the option of examining himself as a witness for an offence punishable under Section 138 of the NI Act, in deliberately omitting any reference to the evidence of the accused by way of affidavit. For it would run against a first principle in criminal law namely, that an accused shall not be called as a witness except on his own request in writing. The evidence on behalf of the accused would include that of the accused, subject to Section 315 Cr.P.C. If the evidence of the witnesses could be by way of affidavit in terms of Section 145 NI Act, the evidence of the accused could also be way of affidavit. 18. I take notice of the fact that the question of law which I have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such permission. It was held that there was no express bar on the accused to give evidence on affidavit, either in the NI Act or the Code of Criminal Procedure, 1973 (Hereinafter referred to as the CrPC, for brevity). The accused was permitted to tender evidence by way of affidavit. Taking exception to the above reasoning of the High Court, the Apex Court held as follows: "46. On this issue, we are afraid that the High Court overreached itself and took a course that amounts to taking-over the legislative functions. On a bare reading of section 143 (sic Section 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 anal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure, 1973, 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 fact contained therein." Sub-section (1) contemplates an option which the complainant has of tendering his evidence by way of an affidavit. The omission of reference to the accused is for an obvious reason as shall be presently pointed out. Sub-section (2) would indicate that there could be affidavit evidence of both witnesses for the complainant and also witnesses for the accused. For otherwise, there would be no need to refer to an application of the prosecution to examine any person giving evidence on affidavit..." This is in consonance with the procedure prescribed for a Summary trial (which is the same as is specified for the trial of a Summons case, under the CrPC. See: Section 262 CrPC). The procedure prescribed there under does not contemplate the accused standing as a witness. Though he may examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision enables even the defence evidence to be led by affidavits. Thus, the said provision is purely procedural in nature. In this behalf, the Apex court has in Shreenath v. Rajesh, AIR 1998 SC 1827, has held that in interpreting any procedural law, where more than one interpretation is possible, the one which curtails the procedure without eluding the justice, is to be adopted. The procedural law is always subservient to and is in aid to justice. (See: KSL Industries v. Khandelwal, 2006(1) Mh.LJ (Cri) 86). The Apex Court in Mandvi Cooperative Bank Limited, (supra), has not examined the matter in the above perspective. On the other hand, the view taken and the directions issued in a more recent decision of the Apex Court, in the case of Indian Bank Association (supra) does contemplate evidence by affidavit by the accused. The relevant portion is extracted hereunder: "DIRECTIONS: 21. 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:- (1) Metropolitan Magistrate/J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Negotiable Instruments Act. Reference, in this connection, may be made to the judgments of the Bombay High Court in KSL and Industries Ltd. Vs. Mannalal Khandelwal, 2005 Cri.L.J. 1201 (Bom), Indo International Ltd. Vs. State of Maharashtra, 2006 Cri.L.J. 208, and Harischandra Biyani vs. Stock Holding Corpn. of India Ltd (2006)4 MahLJ 381, the judgment of the Calcutta High Court in Magma Leasing Limited v. State of West Bengal, (2007)3 CHN 574, and the judgment of the Delhi High Court in Rajesh Agarwal vs. State, ILR (2010)6 Del 610." In KSL and Industries Ltd., vs. Mannalal Khandelwal (supra), a Division Bench of the Bombay High Court in order to accomplish the underlying object of the Act, has issued certain directions, one of which reads as follows:- "(b) The Court concerned must ensure that examination-in-chief, cross-examination and reexamination of the complainant must be concluded within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the Court." (emph ..... 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