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2024 (6) TMI 750 - HC - Indian LawsIssues Involved: 1. Whether an accused in a complaint for an offence punishable u/s 138 of the NI Act, 1881, is entitled to give evidence on an affidavit as provided u/s 145 of the NI Act, 1881. Summary: Issue 1: Whether an accused in a complaint for an offence punishable u/s 138 of the NI Act, 1881, is entitled to give evidence on an affidavit as provided u/s 145 of the NI Act, 1881. The petitions raised the question of whether an accused in a complaint for an offence punishable u/s 138 of the NI Act, 1881, is entitled to give evidence on an affidavit as provided u/s 145 of the NI Act, 1881. The original complainant filed complaints alleging the issue, presentment, and dishonour of cheques by the petitioners and their failure to pay the amount despite service of the demand notice. The petitioners, after their examination u/s 313 of the Code of Criminal Procedure, 1973, tendered an affidavit in lieu of examination in chief. The complainant objected, arguing that the accused has no right to adduce evidence by way of affidavit u/s 145 of the NI Act, 1881. The learned Metropolitan Magistrate declined to accept the evidence of the accused on an affidavit, granting liberty to the accused to examine himself on oath in the witness box. The petitioners contended that the provisions of sections 143 to 147 of the NI Act, 1881, inserted by Act 55 of 2002, should allow the accused to adduce evidence on an affidavit. They argued that the Magistrate misinterpreted the Supreme Court's decision in Mandvi Cooperative Bank Limited vs. Nimesh B. Thakore (2010) 3 SCC 83, and that the subsequent judgment in Indian Bank Association and Ors. vs. Union of India and Ors. AIR 2014 SC 2528 expanded the scope of section 145 of the NI Act, 1881. The respondent's counsel argued that the question is no longer res integra and is concluded against the accused by the Supreme Court's decision in Mandvi Cooperative Bank (supra). The High Court in SBI Global Factors Limited vs. The State of Maharashtra and Ors 2021 SCC OnLine Bom 365, and Nitin Shriram Sabe vs. Prakashrao Keshavrao Deshmukh Cri. WP.No. 718 of 2022, also rejected similar contentions. The Court noted that the Supreme Court in Mandvi Cooperative Bank (supra) held that the legislature did not provide for the accused to give evidence on affidavit, and the High Court overreached by allowing it. The Court found no deviation in the Indian Bank Association (supra) from Mandvi Cooperative Bank (supra) regarding this issue. The latter decision did not strike a discordant note and did not permit the accused to lead evidence on an affidavit. The Court concluded that the decisions in SBI Global Factors Limited (supra) and Nitin Shriram Sabe (supra) correctly held that the question is concluded against the accused by the Supreme Court's judgment in Mandvi Cooperative Bank (supra). The petitions were dismissed, and the learned Metropolitan Magistrate was requested to conclude the trial expeditiously. Order: 1. The petitions stand dismissed. 2. Rule discharged. 3. No costs.
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