2023 (4) TMI 1335 - HC - Indian Laws

Dishonour of Cheque - petitioner sought to give evidence on affidavit under Section 315 Cr.P.C read with Section 145(2) of N.I. Act - HELD THAT - The Hon ble Apex Court in Indian Bank Association and others 2014 (5) TMI 750 - SUPREME COURT has only issued certain directions for speedy disposal of cases under Section 138 of Negotiable Instruments Act and it has nowhere been held that an accused can give his evidence on affidavit. Moreover the trial court has already mentioned that the petitioner may examine himself as a defence witness but the petitioner wants to give evidence on affidavit which seems only to delay the matter. There are no illegality or perversity in the impugned orders - petition dismissed.

Summary

Issues involved:
The issues involved in this case are the dismissal of a revision petition against the order passed by the Metropolitan Magistrate under Section 138 of the Negotiable Instruments Act, where the petitioner sought to give evidence on affidavit under Section 315 Cr.P.C read with Section 145(2) of N.I. Act.

Judgment Summary:

Issue 1: Dismissal of revision petition against the order of Metropolitan Magistrate:
The instant misc. petition was filed against the order dated 10.01.2023 passed by the Additional Sessions Judge No. 2, Jodhpur Metropolitan, affirming the order dated 14.07.2022 passed by the Metropolitan Magistrate (N.I. Act) Cases No. 7, Jodhpur Metropolitan, where the application filed by the petitioner under Section 315 Cr.P.C. read with Section 145(2) of N.I. Act was dismissed.

Details:
The complainant filed a complaint under Section 138 of N.I. Act regarding the dishonoring of a cheque. The petitioner sought to give evidence on affidavit under Section 315 Cr.P.C read with Section 145(2) of N.I. Act, stating his defense. The Metropolitan Magistrate dismissed the application, which was challenged in a revision petition before the Additional Sessions Judge No. 2, Jodhpur Metropolitan, and subsequently dismissed on 10.01.2023.

Issue 2: Legal provisions and precedents:
The petitioner relied on Section 145 of the Negotiable Instruments Act, which allows the complainant to give evidence on affidavit. The Hon'ble Supreme Court's interpretation in various cases clarified that summoning a person under Section 145(2) for examination is for cross-examination purposes only. Additionally, the Apex Court held in the case of Mandvi Cooperative Bank Ltd that the accused cannot file an affidavit under Section 145(1) of the Act.

Details:
The legal provisions under Section 145 of the Act enable the complainant to provide evidence on affidavit, subject to exceptions. The Supreme Court's interpretation emphasized that summoning under Section 145(2) is for cross-examination purposes. Furthermore, the Court's decision in Mandvi Cooperative Bank Ltd's case established that the accused cannot file an affidavit under Section 145(1) of the Act.

Issue 3: Dismissal of the misc. petition:
The Court, after considering the arguments of both parties and perusing the impugned orders, found no illegality or perversity in the decisions. The petitioner's insistence on giving evidence on affidavit was viewed as an attempt to delay proceedings, as the trial court had already permitted the petitioner to appear as a defense witness. Consequently, the misc. petition was dismissed.

Details:
The Court, after reviewing the arguments and legal precedents, concluded that the impugned orders did not warrant interference. The petitioner's desire to give evidence on affidavit, despite being allowed to appear as a defense witness, was seen as an attempt to delay proceedings. Therefore, the Court dismissed the misc. petition and the stay application.