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2016 (8) TMI 1599 - HC - Indian LawsDishonour of Cheque - accused can tender evidence by way of affidavit u/s 145 of the NI Act or not - Interpretation of Section 145 of the NI Act - HELD THAT - 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. 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. Petition allowed.
Issues Involved:
1. Whether the accused can tender evidence by way of affidavit u/s 145 of the NI Act. 2. Interpretation of Section 145 of the NI Act in light of conflicting judgments by the Supreme Court. Summary: Issue 1: Whether the accused can tender evidence by way of affidavit u/s 145 of the NI Act. The petition was filed by the accused contesting a complaint u/s 138 of the Negotiable Instruments Act, 1881 (NI Act). The accused sought permission to file an affidavit in lieu of oral evidence u/s 145(2) of the NI Act, which was rejected by the trial court. The petitioner relied on the language of Section 145 of the NI Act and the Apex Court's interpretation in Indian Bank Association v. Union of India, (2014)5 SCC 590. The respondent, however, cited the Supreme Court's judgment in Mandvi Cooperative Bank Limited v. Nimesh B. Thakore, (2010)3 SCC 83, which held that Section 145(1) did not confer a similar right on the accused to give evidence on affidavit as it did on the complainant. The High Court had previously allowed the accused to tender evidence by affidavit, but the Apex Court disagreed, stating that the legislature did not intend for the accused to have this right. Issue 2: Interpretation of Section 145 of the NI Act in light of conflicting judgments by the Supreme Court. The court examined Sections 143 to 147 of the NI Act, which were inserted to expedite the disposal of cases. Section 145 allows the complainant to tender evidence by affidavit but does not explicitly extend this right to the accused. However, sub-section (2) implies that both the prosecution and the accused can summon and examine any person giving evidence on affidavit. The court noted that the procedure for summary trials under the Cr.P.C. does not contemplate the accused standing as a witness unless he opts to do so u/s 315 Cr.P.C. The court emphasized that procedural laws should aid justice and not hinder it, citing Shreenath v. Rajesh, AIR 1998 SC 1827. The court found that the Apex Court's decision in Mandvi Cooperative Bank Limited did not consider the procedural aspects and the intent of Section 145. Instead, the court followed the more recent decision in Indian Bank Association, which allowed for evidence by affidavit by the accused. The court also referred to various High Court judgments that supported this view, including KSL and Industries Ltd. v. Mannalal Khandelwal, 2005 Cri.LJ 1201 (Bom), and Rajesh Agarwal v. State, ILR (2010)6 Del 610. Conclusion: The petition was allowed, and the trial court was directed to receive the affidavit evidence of the petitioner in accordance with Section 315 Cr.P.C. and proceed with the case as per the law.
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