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/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 any, are found to be in
order, take cognizance and direct issuance of
summons.
(2) The MM/JM should adopt a pragmatic and
realistic approach while issuing summons.
Summons must be properly addressed and sent
by post as well as by e-mail address got from
the complainant. The court, in appropriate cases,
may take the assistance of the police or the
nearby court to serve notice on the accused. For
notice of appearance, a short date be fixed. If the
summons is received back un-served, immediate
follow up action be taken.
(3) The court may indicate in the summons that if
the accused makes an application for
compounding of offences at the first hearing of
the case and, if such an application is made, the
court may pass appropriate orders at the
earliest.
(4) The court should direct the accused, 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 recalling
a witness for cross-examination.
(5) The Court concerned must ensure that
examination-in-chief, cross-examination and
reexamination 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
court. The witnesses to the complaint and
accused must be available for cross-examination
as and when there is direction to this effect by
the court.
22. We, therefore, direct all the criminal courts in the country
dealing with Section 138 cases to follow the abovementioned
procedures for speedy and expeditious disposal
of cases falling under Section 138 of the Negotiable
Instruments Act. The writ petition is, accordingly, disposed
of, as above.”
Incidentally, in the above judgment, the Supreme Court has
referred to with approval the views expressed in the
following decisions, in stating thus:-
“22. We notice, considering all those aspects, few High
Courts of the country have laid down certain
procedures for speedy disposal of cases under Section
138 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 crossexamination
as and when there is direction to this
effect by the Court.” (emphasis supplied)
In M/s Indo-International Ltd., vs. State of Maharashtra,
(supra), the decision in KSL and Industries Ltd., vs.
Mannalal Khandelwal (supra) has been relied upon and
followed.
In Harischandra Biyani vs. Stock Holding Corporation of
India Ltd. (supra), the Bombay High Court has again applied
and followed the decision in KSL and Industries Ltd., vs.
Mannalal Khandelwal (supra).
In Magma Leasing Ltd. vs. State of West Bengal (supra),
there is a reference to KSL and Industries Ltd., vs. Mannalal
Khandelwal (supra), and the same has been referred to and
relied upon in holding that Section 145 enables the accused
or defence to lay evidence by affidavit.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3367 of 2018
MR.JUSTICE J.B.PARDIWALA
RAKESHBHAI MAGANBHAI BAROT Vs STATE OF GUJARAT
CORAM: MR.JUSTICE J.B.PARDIWALA
Date : 29/01/2019
1. By this application under Article 227 of the Constitution of
India, the applicant – original accused calls in question the
legality and validity of the order passed by the 3rd Additional
Civil Judge, Himmatnagar, dated 27th March 2018 below
application Exh.128 in the Criminal Case No.3145 of 2014.
2. It appears from the materials on record that the
respondent no.2 herein – original complainant filed a private
complaint in the Court of the Chief Judicial Magistrate,
Himmatnagar, against the applicant herein for the offence
punishable under Section 138 of the Negotiable Instruments
Act. The complaint has been registered as the Criminal Case
No.3145 of 2014 and the same is pending as on date in the
Court of the Chief Judicial Magistrate, Himmatnagar. The
applicant – original accused preferred 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 recording it orally. Ld.
Court can direct the witnesses of the
complainant and accused to remain present for
cross - examination as and when the Ld. Court
calls for.””
4) The Hon'ble Supreme Court has passed this judgment
after considering the decision in the case of Mandavi
Cooperative Bank Ltd. v/s. Nimesh Thakore and, therefore,
the directions given in this judgment should be followed by
all the courts of the country.
5) Before disposing of the present application, the court
should take into consideration that, “not only the courts
should follow the laws, but they should also follow the
directions given by the Hon'ble Apex Court.”
In the aforesaid circumstances, by submitting this
application we, the accused, as well as our witnesses,
propose to give our evidence on affidavit by way of
examination-in-chief. Therefore, an appropriate order be
passed for giving evidence of the accused as well as of the
witnesses of the accused on affidavit by way of
examination-in-chief.”
3. The court below adjudicated the application Exh.128 and
rejected the same by placing strong reliance on the decision of
the Supreme Court in the case of M/s.Mandvi Cooperative Bank
Limited v. Nimesh B.Thakore, reported in (2010)3 SCC 83.
4. Being dissatisfied with the order passed by the trial court
below application Exh.128, the applicant – original accused is
here before this Court with this application.
5. Mr.Thakur, the learned counsel appearing for the
applicant, vehemently submitted that the trial court committed
a serious error in passing the impugned order. According to the
learned counsel, the decision of the Supreme Court in the case
of M/s.Mandvi Cooperative Bank Limited (supra) is directly in
conflict with the later decision of the Supreme Court in the case
of Indian Bank Association and others v. Union of India and
others, reported in (2014)5 SCC 590. He would submit that in
view of the recent pronouncement of the Supreme Court in the
case of Indian Bank Association (supra), the accused has a
right to lead his evidence on affidavit. In such circumstances,
the learned counsel prays that there being merit in this
application, the same may be allowed and the impugned order
be quashed. The learned counsel prays that the application
Exh.128 filed before the trial court may be allowed.
6. On the other hand, this application has been vehemently
opposed by Mr.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 entitles
the complainant and his witnesses to give their evidence on
affidavit.
9. Section 4 of the Code, inter alia, states that all offences
under any other law (i.e. laws other than the IPC) shall be
investigated, enquired into, tried and otherwise be dealt with
according to the provisions of the Code, but subject to any
enactment for the time being in force regulating, inter alia, the
manner of trying or dealing with such offences. The Act is a law
which regulates the manner in which the trial of the offence
under Section 138 shall be conducted. The application of the
procedure prescribed by the Code is, therefore, subject to the
procedure prescribed by the Act, and the provisions of the Act
would have an overriding effect. This intention of the Legislature
is also demonstrated by Section 5 of the Code, which saves the
existing special and local laws, inter alia, prescribing special
procedure, on the coming into force of the Code.
10. Section 145 of the Act begins with words "Notwithstanding
anything contained in the Code....". Therefore, Section 145 of
the Act is an exception to the normal rule as envisaged in
Section 200 of the Code, that the complainant would be
required to give his evidence by appearing in person and by
making a statement on oath before the Court. Section 145 is
located in Chapter XVII of the Act which deals with "penalties in
case of dishonour of certain cheques for insufficiency of funds
in the accounts." By virtue of Section 143 of the Act,
notwithstanding anything contained in the Code, offences under
the said Chapter XVII of the Act are triable by a Judicial
Magistrate of the First Class, or by a Metropolitan Magistrate
and the procedure applicable to summary trials under the
Code, contained in Sections 262 to 265, both inclusive, as far
as may be, apply to such trials.
11. It is now well-recognized that Chapter XVII was
introduced in the Act with a view to provide greater efficacy to
the transactions undertaken on the basis of cheques and to
instill confidence in the minds of the people in the commercial
world with regard to the workability of the system of payments
made by cheques. The transactions, wherein consideration
passes through cheques cannot be lightly taken any longer by
the drawers of the cheques, as the breach of such transactions
as a result of the dishonour of the cheques issued by one of the
parties, would result 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, consistently with the interests of justice, be
continued from day to day until its conclusion, unless the
Court finds the adjournment of the trial beyond the
following day to be necessary for reasons to be recorded in
writing.
(3) Every trial under this section shall be conducted as
expeditiously as possible and an endeavour shall be made
to conclude the trial within six months from the date of
filing of the complaint."
12. Therefore, the dictate of the law is that the summary trial
should normally be continued from day to day until its
conclusion and the endeavour of the court should be to
conclude the trial within six months from the date of filing of
the complaint.
13. Section 145 of the Act has also to be read and understood
keeping in mind the orientation of the law contained in Chapter
XVII of the Act. The complainant is normally the driving force
behind the complaint, and the most important witness in any,
such complaint. In spite of this being the position, Section 45(1)
of the Act carves out an exception to the normal rule, and
provides that the complainant may give his evidence on affidavit
which may, subject to just exceptions, be read in evidence in
any enquiry, trial and other proceedings under the Code. This is
an enabling provision, introduced presumably for the reason
that a complaint of this nature is based on documentary
evidence viz. the cheque, the dishonour memo, the notice and
its acknowledgment. This exception is also structured to cut out
the time that may be spent in recording the statement of the
complainant if he is obliged to appear in person and make his
statement before the court. The purpose, behind enacting
Section 145 of the Act appears to be to expedite the disposal of
complaints made under Section 138 of the Act, and to save the
time of the court and the witness(s), and to save costs and
inconvenience being caused to one or the other party.
14. Sub-section (1) of Section 145 of the Act 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.
15. 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 ...".
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 been called upon to answer was the very same question
which was looked into by a learned Single Judge of the
Karnataka High Court in the case of Afzal Pasha v. Mohamed
Ameerjan (Criminal Petition No.1684 of 2016, decided on 9th
August 2016). I may quote the relevant observations made by
the learned Single Judge of the Karnataka High Court thus :
“2. The petition is filed by the accused, against whom a
complaint is filed before the court below alleging an
offence punishable under Section 138 of the Negotiable
Instruments Act, 1881 (Hereinafter referred to as the NI
Act , for brevity). The petitioner is contesting the case. At
the stage when the case was set down for the evidence of
the accused, he is said to have filed an application under
Section 145(2) of the NI Act, seeking permission of the
court to file an affidavit in lieu of oral evidence. The trial
court having rejected the application on the ground that
the same is not permissible, the present petition is filed.
3. The learned counsel for the petitioner places reliance on
the language of Section 145 of the NI Act to contend that the
trial court has not taken into consideration the intent of the
provision, which has been interpreted by the Apex Court in
the case of Indian Bank Association v. Union of India,
(2014)5 SCC 590.
4. On the other hand, the learned counsel for the respondent
would submit that the trial court has rightly rejected the
application in the light of the judgment of the Supreme Court
in the case of Mandvi Cooperative Bank limited v. Nimesh B.
Thakore, (2010)3 SCC 83. In the said case, the apex court
had not agreed with the High Court which had held that
Section 145(1) did confer a right on the complainant to give
evidence on affidavit. But there was no similar right
conferred on the accused. That the legislature apparently
had posited, that the immunity conferred on the accused
from being compelled to be a witness against himself under
Article 20(3) of the Constitution of India, did not warrant the
incorporation of the word accused with the word
complainant in sub-section 145 of the NI Act. The High Court
had gone on to hold that, merely because, Section 145 did
not expressly permit the accused to give evidence on
affidavit, it did not mean that the Magistrate could not allow
the accused to do so by applying the same analogy, unless
there was just and reasonable ground to refuse 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 analogy unless there was a just
and reasonable ground to refuse such permission.
47. There are two errors apparent in the reasoning of
the High Court. First, if the legislature in their wisdom
did not think it proper to incorporate a word accused
with the word complainant in section 145(1)...... , it
was not open to the High Court to fill up the self
perceived blank. Secondly, the High Court was in error
in drawing an analogy between the evidences of the
complainant and the accused in a case of dishonoured
cheque. The case of the complainant in a complaint
under section 138 of the Act would be based largely
on documentary evidence.
48. The accused, on the other hand, in a large number
of cases, may not lead any evidence at all and let the
prosecution stand or fall on its own evidence. 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.”
5. In the light of the above, the point for consideration before
this court is whether it would be impermissible for the
accused to tender evidence by way of affidavit having
regard to the tenor of Section 145 of the NI Act.
It is seen that Sections 143 to 147 of the NI Act were
inserted by the Negotiable Instruments (Amendment and
Miscellaneous Provisions) Act, 2002. One of the objects to
bring about the new legislation mentioned in the Objects
and Reasons of the Act of 2002 was to provide for summary
trial of the cases under the Act, with a view to speed up the
disposal of cases. Section 143 provides for the cases under
the NI Act being tried summarily. Hence Sections 262 to 265
of the CrPC would be applicable. Section 145 of the NI Act,
provides for a departure in the manner of tendering evidence
at the trial, and permits evidence by way of affidavit.
The said Section is extracted hereunder for ready reference:
“145. Evidence on affidavit.- (1) Notwithstanding
anything contained in the Code of Criminal Procedure,
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 witnesses on his behalf.
Chapter XXIV of the CrPC contains the General Provisions
as to Enquiries and Trials. Section 315 thereof reads as
follows:-
“315.Accused person to be competent witness.-
(1) Any person accused of an offence before a Criminal
Court shall be a competent witness for the defense
and may give evidence on oath in disproof of the
charges made against him or any person charged
together with him at the same trial:
Provided that-
(a) he shall not be called as a witness except on his
own request in writing;
(b) his failure to give evidence shall not be made the
subject of any comment by any of the parties or the
Court or give rise to any presumption against himself
or any person charged together with him at the same
trial
(2) Any person against whom proceedings are
instituted in any Criminal Court under section 98, or
section 107, or section 108, or section 109, or section
110, or under Chapter IX or under Part B, Part C or
Part D of Chapter X, may offer himself as a witness in
such proceedings:
Provided that in proceedings under section 108,
section 109 or section 110, the failure of such person
to give evidence shall not be made the subject or any
comment by any of the parties or the Court or give rise
to any presumption against him or any other person
proceeded against together with him at the same
inquiry.”
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.
A closer scrutiny of Section 145 would indicate that the
same is intended to ensure that the trial is concluded as
expeditiously as possible. The said provision does not in
any manner affect the right of the accused to cross examine
the complainant and his witnesses. The said provision
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/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 any, are found to be in
order, take cognizance and direct issuance of
summons.
(2) The MM/JM should adopt a pragmatic and
realistic approach while issuing summons.
Summons must be properly addressed and sent
by post as well as by e-mail address got from
the complainant. The court, in appropriate cases,
may take the assistance of the police or the
nearby court to serve notice on the accused. For
notice of appearance, a short date be fixed. If the
summons is received back un-served, immediate
follow up action be taken.
(3) The court may indicate in the summons that if
the accused makes an application for
compounding of offences at the first hearing of
the case and, if such an application is made, the
court may pass appropriate orders at the
earliest.
(4) The court should direct the accused, 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 recalling
a witness for cross-examination.
(5) The Court concerned must ensure that
examination-in-chief, cross-examination and
reexamination 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
court. The witnesses to the complaint and
accused must be available for cross-examination
as and when there is direction to this effect by
the court.
22. We, therefore, direct all the criminal courts in the country
dealing with Section 138 cases to follow the abovementioned
procedures for speedy and expeditious disposal
of cases falling under Section 138 of the Negotiable
Instruments Act. The writ petition is, accordingly, disposed
of, as above.”
Incidentally, in the above judgment, the Supreme Court has
referred to with approval the views expressed in the
following decisions, in stating thus:-
“22. We notice, considering all those aspects, few High
Courts of the country have laid down certain
procedures for speedy disposal of cases under Section
138 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 crossexamination
as and when there is direction to this
effect by the Court.” (emphasis supplied)
In M/s Indo-International Ltd., vs. State of Maharashtra,
(supra), the decision in KSL and Industries Ltd., vs.
Mannalal Khandelwal (supra) has been relied upon and
followed.
In Harischandra Biyani vs. Stock Holding Corporation of
India Ltd. (supra), the Bombay High Court has again applied
and followed the decision in KSL and Industries Ltd., vs.
Mannalal Khandelwal (supra).
In Magma Leasing Ltd. vs. State of West Bengal (supra),
there is a reference to KSL and Industries Ltd., vs. Mannalal
Khandelwal (supra), and the same has been referred to and
relied upon in holding that Section 145 enables the accused
or defence to lay evidence by affidavit.
In Rajesh Agarwal vs. State and another, (supra), again the
decision in KSL and Industries Ltd., vs. Mannalal
Khandelwal (supra), has been applied and the consistent
view taken in these decisions has been approved and
applied by the Supreme Court in direction no.5, referred to
hereinabove.
Hence, in keeping with judicial propriety, the later judgment
of the Apex court can safely be applied when the divergent
view is that of a co-ordinate bench of the same court.
Accordingly, this petition is allowed. The trial court is
directed to receive the affidavit evidence of the petitioner on
his request, in accordance with Section 315 Cr.P.C. and
proceed with the pending case in accordance with law.”
19. I am in complete agreement with the reasonings assigned
by the learned Single Judge of the Karnataka High Court as
regards the issue in question and I propose to follow the same.
20. In view of the above, this application stands allowed. The
impugned order passed by the 3rd Additional Civil Judge,
Himmatnagar, below application Exh.128 in the Criminal Case
No.3145 of 2014 is quashed and set-aside. The application
Exh.128 filed by the applicant – accused is hereby allowed. The
trial court shall permit the applicant – accused to tender his
evidence including the evidence of his witnesses, if any, by way
of affidavit. However, it need not be clarified that the accused
and his witnesses must be available for cross-examination as
and when they are directed by the trial court to appear for the
same.
(J. B. PARDIWALA, J.)
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/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 any, are found to be in
order, take cognizance and direct issuance of
summons.
(2) The MM/JM should adopt a pragmatic and
realistic approach while issuing summons.
Summons must be properly addressed and sent
by post as well as by e-mail address got from
the complainant. The court, in appropriate cases,
may take the assistance of the police or the
nearby court to serve notice on the accused. For
notice of appearance, a short date be fixed. If the
summons is received back un-served, immediate
follow up action be taken.
(3) The court may indicate in the summons that if
the accused makes an application for
compounding of offences at the first hearing of
the case and, if such an application is made, the
court may pass appropriate orders at the
earliest.
(4) The court should direct the accused, 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 recalling
a witness for cross-examination.
(5) The Court concerned must ensure that
examination-in-chief, cross-examination and
reexamination 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
court. The witnesses to the complaint and
accused must be available for cross-examination
as and when there is direction to this effect by
the court.
22. We, therefore, direct all the criminal courts in the country
dealing with Section 138 cases to follow the abovementioned
procedures for speedy and expeditious disposal
of cases falling under Section 138 of the Negotiable
Instruments Act. The writ petition is, accordingly, disposed
of, as above.”
Incidentally, in the above judgment, the Supreme Court has
referred to with approval the views expressed in the
following decisions, in stating thus:-
“22. We notice, considering all those aspects, few High
Courts of the country have laid down certain
procedures for speedy disposal of cases under Section
138 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 crossexamination
as and when there is direction to this
effect by the Court.” (emphasis supplied)
In M/s Indo-International Ltd., vs. State of Maharashtra,
(supra), the decision in KSL and Industries Ltd., vs.
Mannalal Khandelwal (supra) has been relied upon and
followed.
In Harischandra Biyani vs. Stock Holding Corporation of
India Ltd. (supra), the Bombay High Court has again applied
and followed the decision in KSL and Industries Ltd., vs.
Mannalal Khandelwal (supra).
In Magma Leasing Ltd. vs. State of West Bengal (supra),
there is a reference to KSL and Industries Ltd., vs. Mannalal
Khandelwal (supra), and the same has been referred to and
relied upon in holding that Section 145 enables the accused
or defence to lay evidence by affidavit.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3367 of 2018
MR.JUSTICE J.B.PARDIWALA
RAKESHBHAI MAGANBHAI BAROT Vs STATE OF GUJARAT
CORAM: MR.JUSTICE J.B.PARDIWALA
Date : 29/01/2019
1. By this application under Article 227 of the Constitution of
India, the applicant – original accused calls in question the
legality and validity of the order passed by the 3rd Additional
Civil Judge, Himmatnagar, dated 27th March 2018 below
application Exh.128 in the Criminal Case No.3145 of 2014.
2. It appears from the materials on record that the
respondent no.2 herein – original complainant filed a private
complaint in the Court of the Chief Judicial Magistrate,
Himmatnagar, against the applicant herein for the offence
punishable under Section 138 of the Negotiable Instruments
Act. The complaint has been registered as the Criminal Case
No.3145 of 2014 and the same is pending as on date in the
Court of the Chief Judicial Magistrate, Himmatnagar. The
applicant – original accused preferred 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 recording it orally. Ld.
Court can direct the witnesses of the
complainant and accused to remain present for
cross - examination as and when the Ld. Court
calls for.””
4) The Hon'ble Supreme Court has passed this judgment
after considering the decision in the case of Mandavi
Cooperative Bank Ltd. v/s. Nimesh Thakore and, therefore,
the directions given in this judgment should be followed by
all the courts of the country.
5) Before disposing of the present application, the court
should take into consideration that, “not only the courts
should follow the laws, but they should also follow the
directions given by the Hon'ble Apex Court.”
In the aforesaid circumstances, by submitting this
application we, the accused, as well as our witnesses,
propose to give our evidence on affidavit by way of
examination-in-chief. Therefore, an appropriate order be
passed for giving evidence of the accused as well as of the
witnesses of the accused on affidavit by way of
examination-in-chief.”
3. The court below adjudicated the application Exh.128 and
rejected the same by placing strong reliance on the decision of
the Supreme Court in the case of M/s.Mandvi Cooperative Bank
Limited v. Nimesh B.Thakore, reported in (2010)3 SCC 83.
4. Being dissatisfied with the order passed by the trial court
below application Exh.128, the applicant – original accused is
here before this Court with this application.
5. Mr.Thakur, the learned counsel appearing for the
applicant, vehemently submitted that the trial court committed
a serious error in passing the impugned order. According to the
learned counsel, the decision of the Supreme Court in the case
of M/s.Mandvi Cooperative Bank Limited (supra) is directly in
conflict with the later decision of the Supreme Court in the case
of Indian Bank Association and others v. Union of India and
others, reported in (2014)5 SCC 590. He would submit that in
view of the recent pronouncement of the Supreme Court in the
case of Indian Bank Association (supra), the accused has a
right to lead his evidence on affidavit. In such circumstances,
the learned counsel prays that there being merit in this
application, the same may be allowed and the impugned order
be quashed. The learned counsel prays that the application
Exh.128 filed before the trial court may be allowed.
6. On the other hand, this application has been vehemently
opposed by Mr.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 entitles
the complainant and his witnesses to give their evidence on
affidavit.
9. Section 4 of the Code, inter alia, states that all offences
under any other law (i.e. laws other than the IPC) shall be
investigated, enquired into, tried and otherwise be dealt with
according to the provisions of the Code, but subject to any
enactment for the time being in force regulating, inter alia, the
manner of trying or dealing with such offences. The Act is a law
which regulates the manner in which the trial of the offence
under Section 138 shall be conducted. The application of the
procedure prescribed by the Code is, therefore, subject to the
procedure prescribed by the Act, and the provisions of the Act
would have an overriding effect. This intention of the Legislature
is also demonstrated by Section 5 of the Code, which saves the
existing special and local laws, inter alia, prescribing special
procedure, on the coming into force of the Code.
10. Section 145 of the Act begins with words "Notwithstanding
anything contained in the Code....". Therefore, Section 145 of
the Act is an exception to the normal rule as envisaged in
Section 200 of the Code, that the complainant would be
required to give his evidence by appearing in person and by
making a statement on oath before the Court. Section 145 is
located in Chapter XVII of the Act which deals with "penalties in
case of dishonour of certain cheques for insufficiency of funds
in the accounts." By virtue of Section 143 of the Act,
notwithstanding anything contained in the Code, offences under
the said Chapter XVII of the Act are triable by a Judicial
Magistrate of the First Class, or by a Metropolitan Magistrate
and the procedure applicable to summary trials under the
Code, contained in Sections 262 to 265, both inclusive, as far
as may be, apply to such trials.
11. It is now well-recognized that Chapter XVII was
introduced in the Act with a view to provide greater efficacy to
the transactions undertaken on the basis of cheques and to
instill confidence in the minds of the people in the commercial
world with regard to the workability of the system of payments
made by cheques. The transactions, wherein consideration
passes through cheques cannot be lightly taken any longer by
the drawers of the cheques, as the breach of such transactions
as a result of the dishonour of the cheques issued by one of the
parties, would result 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, consistently with the interests of justice, be
continued from day to day until its conclusion, unless the
Court finds the adjournment of the trial beyond the
following day to be necessary for reasons to be recorded in
writing.
(3) Every trial under this section shall be conducted as
expeditiously as possible and an endeavour shall be made
to conclude the trial within six months from the date of
filing of the complaint."
12. Therefore, the dictate of the law is that the summary trial
should normally be continued from day to day until its
conclusion and the endeavour of the court should be to
conclude the trial within six months from the date of filing of
the complaint.
13. Section 145 of the Act has also to be read and understood
keeping in mind the orientation of the law contained in Chapter
XVII of the Act. The complainant is normally the driving force
behind the complaint, and the most important witness in any,
such complaint. In spite of this being the position, Section 45(1)
of the Act carves out an exception to the normal rule, and
provides that the complainant may give his evidence on affidavit
which may, subject to just exceptions, be read in evidence in
any enquiry, trial and other proceedings under the Code. This is
an enabling provision, introduced presumably for the reason
that a complaint of this nature is based on documentary
evidence viz. the cheque, the dishonour memo, the notice and
its acknowledgment. This exception is also structured to cut out
the time that may be spent in recording the statement of the
complainant if he is obliged to appear in person and make his
statement before the court. The purpose, behind enacting
Section 145 of the Act appears to be to expedite the disposal of
complaints made under Section 138 of the Act, and to save the
time of the court and the witness(s), and to save costs and
inconvenience being caused to one or the other party.
14. Sub-section (1) of Section 145 of the Act 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.
15. 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 ...".
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 been called upon to answer was the very same question
which was looked into by a learned Single Judge of the
Karnataka High Court in the case of Afzal Pasha v. Mohamed
Ameerjan (Criminal Petition No.1684 of 2016, decided on 9th
August 2016). I may quote the relevant observations made by
the learned Single Judge of the Karnataka High Court thus :
“2. The petition is filed by the accused, against whom a
complaint is filed before the court below alleging an
offence punishable under Section 138 of the Negotiable
Instruments Act, 1881 (Hereinafter referred to as the NI
Act , for brevity). The petitioner is contesting the case. At
the stage when the case was set down for the evidence of
the accused, he is said to have filed an application under
Section 145(2) of the NI Act, seeking permission of the
court to file an affidavit in lieu of oral evidence. The trial
court having rejected the application on the ground that
the same is not permissible, the present petition is filed.
3. The learned counsel for the petitioner places reliance on
the language of Section 145 of the NI Act to contend that the
trial court has not taken into consideration the intent of the
provision, which has been interpreted by the Apex Court in
the case of Indian Bank Association v. Union of India,
(2014)5 SCC 590.
4. On the other hand, the learned counsel for the respondent
would submit that the trial court has rightly rejected the
application in the light of the judgment of the Supreme Court
in the case of Mandvi Cooperative Bank limited v. Nimesh B.
Thakore, (2010)3 SCC 83. In the said case, the apex court
had not agreed with the High Court which had held that
Section 145(1) did confer a right on the complainant to give
evidence on affidavit. But there was no similar right
conferred on the accused. That the legislature apparently
had posited, that the immunity conferred on the accused
from being compelled to be a witness against himself under
Article 20(3) of the Constitution of India, did not warrant the
incorporation of the word accused with the word
complainant in sub-section 145 of the NI Act. The High Court
had gone on to hold that, merely because, Section 145 did
not expressly permit the accused to give evidence on
affidavit, it did not mean that the Magistrate could not allow
the accused to do so by applying the same analogy, unless
there was just and reasonable ground to refuse 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 analogy unless there was a just
and reasonable ground to refuse such permission.
47. There are two errors apparent in the reasoning of
the High Court. First, if the legislature in their wisdom
did not think it proper to incorporate a word accused
with the word complainant in section 145(1)...... , it
was not open to the High Court to fill up the self
perceived blank. Secondly, the High Court was in error
in drawing an analogy between the evidences of the
complainant and the accused in a case of dishonoured
cheque. The case of the complainant in a complaint
under section 138 of the Act would be based largely
on documentary evidence.
48. The accused, on the other hand, in a large number
of cases, may not lead any evidence at all and let the
prosecution stand or fall on its own evidence. 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.”
5. In the light of the above, the point for consideration before
this court is whether it would be impermissible for the
accused to tender evidence by way of affidavit having
regard to the tenor of Section 145 of the NI Act.
It is seen that Sections 143 to 147 of the NI Act were
inserted by the Negotiable Instruments (Amendment and
Miscellaneous Provisions) Act, 2002. One of the objects to
bring about the new legislation mentioned in the Objects
and Reasons of the Act of 2002 was to provide for summary
trial of the cases under the Act, with a view to speed up the
disposal of cases. Section 143 provides for the cases under
the NI Act being tried summarily. Hence Sections 262 to 265
of the CrPC would be applicable. Section 145 of the NI Act,
provides for a departure in the manner of tendering evidence
at the trial, and permits evidence by way of affidavit.
The said Section is extracted hereunder for ready reference:
“145. Evidence on affidavit.- (1) Notwithstanding
anything contained in the Code of Criminal Procedure,
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 witnesses on his behalf.
Chapter XXIV of the CrPC contains the General Provisions
as to Enquiries and Trials. Section 315 thereof reads as
follows:-
“315.Accused person to be competent witness.-
(1) Any person accused of an offence before a Criminal
Court shall be a competent witness for the defense
and may give evidence on oath in disproof of the
charges made against him or any person charged
together with him at the same trial:
Provided that-
(a) he shall not be called as a witness except on his
own request in writing;
(b) his failure to give evidence shall not be made the
subject of any comment by any of the parties or the
Court or give rise to any presumption against himself
or any person charged together with him at the same
trial
(2) Any person against whom proceedings are
instituted in any Criminal Court under section 98, or
section 107, or section 108, or section 109, or section
110, or under Chapter IX or under Part B, Part C or
Part D of Chapter X, may offer himself as a witness in
such proceedings:
Provided that in proceedings under section 108,
section 109 or section 110, the failure of such person
to give evidence shall not be made the subject or any
comment by any of the parties or the Court or give rise
to any presumption against him or any other person
proceeded against together with him at the same
inquiry.”
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.
A closer scrutiny of Section 145 would indicate that the
same is intended to ensure that the trial is concluded as
expeditiously as possible. The said provision does not in
any manner affect the right of the accused to cross examine
the complainant and his witnesses. The said provision
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/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 any, are found to be in
order, take cognizance and direct issuance of
summons.
(2) The MM/JM should adopt a pragmatic and
realistic approach while issuing summons.
Summons must be properly addressed and sent
by post as well as by e-mail address got from
the complainant. The court, in appropriate cases,
may take the assistance of the police or the
nearby court to serve notice on the accused. For
notice of appearance, a short date be fixed. If the
summons is received back un-served, immediate
follow up action be taken.
(3) The court may indicate in the summons that if
the accused makes an application for
compounding of offences at the first hearing of
the case and, if such an application is made, the
court may pass appropriate orders at the
earliest.
(4) The court should direct the accused, 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 recalling
a witness for cross-examination.
(5) The Court concerned must ensure that
examination-in-chief, cross-examination and
reexamination 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
court. The witnesses to the complaint and
accused must be available for cross-examination
as and when there is direction to this effect by
the court.
22. We, therefore, direct all the criminal courts in the country
dealing with Section 138 cases to follow the abovementioned
procedures for speedy and expeditious disposal
of cases falling under Section 138 of the Negotiable
Instruments Act. The writ petition is, accordingly, disposed
of, as above.”
Incidentally, in the above judgment, the Supreme Court has
referred to with approval the views expressed in the
following decisions, in stating thus:-
“22. We notice, considering all those aspects, few High
Courts of the country have laid down certain
procedures for speedy disposal of cases under Section
138 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 crossexamination
as and when there is direction to this
effect by the Court.” (emphasis supplied)
In M/s Indo-International Ltd., vs. State of Maharashtra,
(supra), the decision in KSL and Industries Ltd., vs.
Mannalal Khandelwal (supra) has been relied upon and
followed.
In Harischandra Biyani vs. Stock Holding Corporation of
India Ltd. (supra), the Bombay High Court has again applied
and followed the decision in KSL and Industries Ltd., vs.
Mannalal Khandelwal (supra).
In Magma Leasing Ltd. vs. State of West Bengal (supra),
there is a reference to KSL and Industries Ltd., vs. Mannalal
Khandelwal (supra), and the same has been referred to and
relied upon in holding that Section 145 enables the accused
or defence to lay evidence by affidavit.
In Rajesh Agarwal vs. State and another, (supra), again the
decision in KSL and Industries Ltd., vs. Mannalal
Khandelwal (supra), has been applied and the consistent
view taken in these decisions has been approved and
applied by the Supreme Court in direction no.5, referred to
hereinabove.
Hence, in keeping with judicial propriety, the later judgment
of the Apex court can safely be applied when the divergent
view is that of a co-ordinate bench of the same court.
Accordingly, this petition is allowed. The trial court is
directed to receive the affidavit evidence of the petitioner on
his request, in accordance with Section 315 Cr.P.C. and
proceed with the pending case in accordance with law.”
19. I am in complete agreement with the reasonings assigned
by the learned Single Judge of the Karnataka High Court as
regards the issue in question and I propose to follow the same.
20. In view of the above, this application stands allowed. The
impugned order passed by the 3rd Additional Civil Judge,
Himmatnagar, below application Exh.128 in the Criminal Case
No.3145 of 2014 is quashed and set-aside. The application
Exh.128 filed by the applicant – accused is hereby allowed. The
trial court shall permit the applicant – accused to tender his
evidence including the evidence of his witnesses, if any, by way
of affidavit. However, it need not be clarified that the accused
and his witnesses must be available for cross-examination as
and when they are directed by the trial court to appear for the
same.
(J. B. PARDIWALA, J.)
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