2020 (3) TMI 1473 - HC - Indian Laws

Dishonour of Cheque - acquittal of the accused - lack of evidence - legality of accused filing affidavit in lieu of examination in chief - HELD THAT - The acceptance of the affidavit on behalf of the accused in lieu of the examination in chief was illegal and not authorized under section 145 of the NI Act. Necessarily, the evidence of PW1 is liable to be eschewed. Hence, the accused should be given a reasonable opportunity to tender evidence if the accused so volunteers. Since the matter is remanded, no further comment is made regarding the remaining findings on merit arrived at by the court below. Learned magistrate shall give reasonable opportunity to the accused to tender the evidence if he is so chooses and after giving a reasonable opportunity to the complainant to cross examine the witness, proceed in accordance with the law and thereafter to pronounce judgment afresh on the entire facts. The matter is remanded to the court below for a fresh consideration of the matter after giving a reasonable opportunity to the accused to tender the evidence, if he so desires - Appeal allowed by way of remand.

Summary

Issues involved: Appeal against acquittal u/s 138 of Negotiable Instruments Act due to lack of evidence. Challenge on the legality of accused filing affidavit in lieu of examination in chief.

Acquittal Challenge: Complainant appealed against accused's acquittal u/s 138 of NI Act. Complainant alleged debt repayment via dishonored cheque. Court found lack of evidence to prove debt and cheque issuance, leading to acquittal.

Legal Challenge: Appellant argued court's findings were based on surmises and accused's evidence filing was illegal. Appellant contended accused's affidavit filing was unauthorized, seeking conviction based on complainant's unchallenged evidence.

Statutory Interpretation: Appellant argued NI Act only permits complainant to file affidavit in chief, not the accused. Citing Madras High Court and Supreme Court precedents, it was contended accused's evidence by affidavit is not allowed under the Act.

Precedent Analysis: Previous cases clarified that accused cannot file proof affidavit in lieu of chief examination. Supreme Court held that accused's evidence differs from complainant's, disallowing accused's affidavit filing.

Remand Decision: Court found accused's affidavit acceptance illegal and unauthorized. Remanded the case for accused to tender evidence lawfully. Relying on SC precedent, court ordered remand for fair trial within two months.

Conclusion: Appeal allowed, impugned judgment set aside, and case remanded for fresh consideration. Accused to be given opportunity to tender evidence lawfully, followed by cross-examination. Court directed to complete the process within two months. Both parties to appear before the court on specified date.