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2021 (3) TMI 490 - HC - Indian LawsDishonor of Cheque - rejection of application for discarding evidence of accused and for directions to the accused to lead oral evidence - Section 138 of the N.I. Act - HELD THAT - The question, whether an accused in proceedings under Section 138 of the N.I. Act is entitled to file an Affidavit in-lieu of Examination-inChief or not, is no more res-integra. The Hon ble Supreme Court in the case of Mandvi Co-op. Bank Ltd. Vs. Nimesh B. Thakore 2010 (1) TMI 570 - SUPREME COURT where it was held that In case the defence does lead any evidence, the nature of its evidence may not be necessarily documentary; in all likelihood the defence would lead other kinds of evidences to rebut the presumption that the issuance of the cheque was not in the discharge of any debt or liability. This is the basic difference between the nature of the complainant's evidence and the evidence of the accused in a case of dishonoured cheque. It is, therefore, wrong to equate the defence evidence with the complainant's evidence and to extend the same option to the accused as well. In view of the elucidation of law by the Hon ble Supreme Court in the case of Mandvi Co-op. Bank Ltd., it is clear that, an accused in a proceedings under Section 138 of the Negotiable Instruments Act cannot be permitted to file an Affidavit-of-Evidence in lieu of Examination-in-Chief. The respondent Nos.2 and 4 herein cannot be permitted to file an Affidavit-of-Evidence in-lieu of Examination-in-Chief - Petition allowed.
Issues:
- Impugned Order rejecting application to discard evidence of accused and direct accused to lead oral evidence under Section 138 of the Negotiable Instruments Act, 1881. Analysis: 1. Impugned Order Challenge: The petitioner challenged the Order dated 1st April 2019 passed by the Metropolitan Magistrate, which rejected their application to discard the evidence of the accused and direct the accused to lead oral evidence in C.C. No.4311/SS/2015 under Section 138 of the Negotiable Instruments Act, 1881. 2. Accused's Affidavit: The accused filed an Affidavit of Evidence in lieu of Examination-in-Chief, leading to the petitioner's application to discard this evidence and direct the accused to lead oral evidence. The Trial Court's Order cited a judgment from the Gujarat High Court and the Supreme Court, leading to the rejection of the petitioner's application. 3. Legal Precedents: The Supreme Court clarified the accused's right to give evidence on affidavit in cases under Section 138 of the N.I. Act. The Court emphasized the legislative intent and the differences in evidence between the complainant and the accused, highlighting that the accused cannot be equated with the complainant in terms of evidence submission. 4. Directions Issued: In another case, the Supreme Court issued directions to expedite cases under Section 138 of the Negotiable Instruments Act. These directions included scrutinizing complaints promptly, realistic issuance of summons, and ensuring timely examination of witnesses, among other procedural guidelines. 5. Judicial Precedent: A Single Judge of the Bombay High Court held that permitting the accused to adduce evidence by way of an affidavit, as done in the present case, was not permissible under the relevant legal provisions. The Judge emphasized the need to quash such directions for expeditious case disposal. 6. Decision and Rationale: Considering the legal elucidation by the Supreme Court, the Court concluded that an accused in proceedings under Section 138 of the N.I. Act cannot file an Affidavit-of-Evidence in lieu of Examination-in-Chief. The impugned Order was quashed, and the accused's evidence was discarded, directing the Metropolitan Magistrate to record the oral evidence of the accused following the prescribed legal procedure. 7. Final Ruling: The Court allowed the petition, making the Rule absolute in terms of the prayer clauses, thereby setting aside the impugned Order and directing the recording of oral evidence of the accused in compliance with the law. This detailed analysis covers the issues raised in the legal judgment, providing a comprehensive understanding of the legal principles, precedents, and the final decision rendered by the Court.
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