2020 (9) TMI 112 - HC - Indian Laws

Dishonor of Cheque - permission to file affidavit of chief examination - the applicant has filed this petition under Section 482 of Cr.P.C. on the ground that learned trial Court has wrongly interpreted the case-laws - Section 145 of N.I. Act - HELD THAT - No doubt by virtue of Section 145(1) of Negotiable Instruments Act, it is only the complainant who is permitted to give evidence on affidavit and that affidavit can be considered during whole trial as evidence. Section 145(2) of Negotiable Instruments Act permits the parties to request the trial Court for calling the witnesses for cross-examination personally. This Court is of the view that the complaint case is pending since 2014 and the applicant has filed a detailed affidavit of evidence before the trial Court which can be used as examination-in-chief of the applicant. If the respondent who is complainant therein wants to crossexamine the applicant, he can apply before the trial Court for calling the applicant for cross-examination. In case the applicant failed to appear before the trial Court for cross-examination, the Court may proceed further presuming that the applicant intentionally not appearing before the Court for cross-examination and the value of such affidavit can be considered at the time of final adjudication of the case. Petition allowed.

Summary

Issues:
Interpretation of Section 145 of Negotiable Instruments Act for filing affidavit of chief examination by the accused under Section 138 of the Act.

Analysis:

Issue 1: Interpretation of Section 145 of Negotiable Instruments Act
The petitioner filed a petition under Section 482 of the Code of Criminal Procedure, 1973, challenging the order passed by the trial court dismissing the application under Section 145 of the Negotiable Instruments Act to submit an affidavit of chief examination. The respondent had filed a complaint under Section 138 of the Act, alleging that the petitioner issued a cheque that was dishonored by the bank. The trial court, relying on previous judgments, denied the petitioner's request to file an affidavit for examination. The petitioner argued that the accused and witnesses could file affidavits as per a Supreme Court ruling. However, the trial court held that only the complainant could provide evidence on affidavit under Section 145 of the Act.

Issue 2: Application of Precedents
The trial court based its decision on the judgments in the cases of Suresh Vs. Ashok and Mandvi Co-operative Bank Limited Vs. Nimesh B. Thakore, which restricted the accused from giving evidence on affidavit under Section 145 of the Negotiable Instruments Act. The petitioner contended that the Supreme Court's decision in Indian Bank Association and others Vs. Union of India and others allowed witnesses of the accused to file affidavits. The court analyzed the conflicting precedents and observed that the trial court erred in not considering the Supreme Court's ruling, which permitted accused and witnesses to provide evidence on affidavit, leaving the decision to the trial court's discretion.

Issue 3: Speedy Disposal of Cases
The court emphasized the need for expeditious disposal of cases under Section 138 of the Negotiable Instruments Act. Referring to the case of Meters and Instruments Private Limited Vs. Kanchan Mehta, the court highlighted the summary nature of proceedings under the Act and the importance of concluding trials within six months. The respondent raised concerns about the delay in the case, which had been pending since 2014. The court acknowledged the delay and directed that the petitioner's affidavit be considered as examination-in-chief, allowing the respondent to request cross-examination if needed.

In conclusion, the court allowed the petition, setting aside the trial court's order and permitting the petitioner's affidavit to serve as examination-in-chief. The court stressed the importance of expeditious trial proceedings and the trial court's discretion in accepting affidavits for evidence.