2019 (11) TMI 1830 - HC - Indian Laws

Dishonour of Cheque - accused while appearing as witness in defence can be allowed to lead his evidence on affidavit or not - HELD THAT - The Apex Court in case of Indian Bank Association 2014 (5) TMI 750 - SUPREME COURT was dealing with the issue of laying down appropriate guidelines/directions to be followed by the Courts while trying complaints under Section 138 of the Negotiable Instruments Act and the issue before the Apex Court was to ensure expeditious disposal of such cases. Though, reference to observations of the Apex Court in case of Mandvi Cooperative Bank Ltd. 2010 (1) TMI 570 - SUPREME COURT was made in para 12 of the judgment but as already discussed the law settled by the Apex Court in that case is clear and has not been set aside or dissented so far. Even that was not in issue before the Apex Court in case of Indian Bank Association. The petitioner being an accused, who is facing trial in complaint under the provisions of Negotiable Instruments Act, is not competent to tender his evidence through affidavit and learned trial Court has not committed any error while declining permission to this effect to petitioner. This petition has no merit and the same is dismissed.

Summary

Issues involved: Whether accused can lead evidence on affidavit while appearing as a witness in defense.

The judgment addressed the issue of whether an accused, while appearing as a witness in defense, can be allowed to lead evidence on affidavit. The trial court had declined the accused's request based on previous observations in the case of Mandvi Cooperative Bank Limited vs. Nimesh B. Thakore. The petitioner argued that under the provisions of the Negotiable Instruments Act, the accused may be allowed to give evidence on affidavit unless there is a just and reasonable ground to refuse such permission. The petitioner's statement was based on documentary evidence, which cannot be deposed orally, and allowing the accused to give evidence on affidavit would not prejudice the complainant. The trial court's decision was deemed unsustainable based on these arguments.

The Apex Court, in the case of Mandvi Cooperative Bank Ltd., had considered whether the accused can give evidence on affidavit as per Section 145(2) of the Negotiable Instruments Act. The High Court had held that the accused could give evidence on affidavit, subject to certain provisions of the Code of Criminal Procedure. However, the Apex Court disagreed with this view, stating that the High Court had overreached itself and taken a course that amounted to taking over legislative functions. The High Court's reasoning was found to contain errors, including filling perceived blanks in legislation and equating the accused's evidence with the complainant's evidence in a case of a dishonored cheque.

The judgment also referenced the case of Indian Bank Association vs. Union of India, where the issue of appropriate guidelines for trying complaints under Section 138 of the Negotiable Instruments Act was discussed. The settled law from the Mandvi Cooperative Bank Ltd. case, as per the Apex Court, was clear that the accused cannot tender evidence through affidavit. Therefore, the petitioner, as an accused facing trial under the Negotiable Instruments Act, was not competent to give evidence on affidavit. The petition was dismissed as having no merit based on this legal proposition.