2024 (6) TMI 750 - HC - Indian Laws

Dishonour of Cheque - entitlement to a person who is an accused in complaint for an offence punishable under section 138 of NI Act, 1881, to give evidence on an affidavit as provided under section 145 of the NI Act, 1881 - 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. HELD THAT - The question that arose for consideration in the case of Mandvi Cooperative bank 2010 (1) TMI 570 - SUPREME COURT was in the context of the import of amended section 143 and 145 of the NI Act, 1881, in particular. On the contrary, a larger issue of expeditious completion of the trial in the complaints under section 138 of the NI Act, 1881 was the subject matter of the Writ Petition filed by the Indian Bank Association 2014 (5) TMI 750 - SUPREME COURT . In that context, the Supreme Court gave certain directions. However, despite noting the decision in the case of Mandvi Cooperative bank, especially the fact that the provisions contained in section 145 were restricted to permitting the complainant to lead evidence on affidavit and do not provide the same dispensation to the accused, Indian Bank Association did not struck a discordant note. The decisions of this Court in SBI Global Factors Limited 2021 (3) TMI 490 - BOMBAY HIGH COURT and NITIN VERSUS PRAKASHRAO 2024 (1) TMI 1292 - BOMBAY HIGH COURT have correctly held that the question sought to be raised by the petitioners is no longer res integra and stands concluded against the accused by the judgment of the Supreme Court in the case of Mandvi Cooperative bank. This Court does not find any reason to take a different view of the matter than the one taken by the coordinate Benches in the cases of SBI Global Factors Limited and Nitin Shriram Sabe. Therefore, the invitation of Mr. Patel (petitioner) to take a different view of the matter is declined and the question referred to a larger Bench. Since the trial in the complaints has reached an advanced stage and only the evidence for the accused is to be adduced, it is deemed appropriate to request the learned Metropolitan Magistrate to conclude the trial as expeditiously as possible. Petition dismissed.

Summary

Issues Involved:
1. Whether an accused in a complaint under section 138 of the NI Act, 1881, is entitled to give evidence on an affidavit as provided under section 145 of the NI Act, 1881.

Issue-wise Detailed Analysis:

1. Entitlement of the Accused to Give Evidence on Affidavit:

Background:
The petitions arose from complaints under section 138 of the Negotiable Instruments Act, 1881 (NI Act), regarding dishonored cheques. The petitioners, accused in these complaints, sought to give evidence on an affidavit under section 145 of the NI Act, which was objected to by the complainant. The Metropolitan Magistrate declined the request, leading to the writ petitions.

Petitioners' Argument:
The petitioners argued that the object of sections 143 to 147 of the NI Act, inserted by Act 55 of 2002, was to expedite proceedings under section 138. They contended that the learned Magistrate erred by relying on the Supreme Court's decision in Mandvi Cooperative Bank Limited vs. Nimesh B. Thakore (2010), which did not consider the subsequent judgment in Indian Bank Association and Ors. vs. Union of India and Ors. (2014). The latter judgment, they argued, expanded the scope of section 145, allowing the accused to adduce evidence on an affidavit.

Respondent's Argument:
The respondent countered that the issue was conclusively settled against the accused by the Supreme Court in Mandvi Cooperative Bank. This position was supported by subsequent judgments of the Bombay High Court in SBI Global Factors Limited vs. The State of Maharashtra and Ors. (2021) and Nitin Shriram Sabe vs. Prakashrao Keshavrao Deshmukh (2022), which upheld the Mandvi Cooperative Bank ruling despite the Indian Bank Association judgment.

Court's Analysis:
The Court noted the legislative intent behind sections 143 to 147 of the NI Act, aimed at expeditious disposal of complaints under section 138. Section 145 specifically allowed the complainant to give evidence on an affidavit but did not extend this provision to the accused. The Supreme Court in Mandvi Cooperative Bank explicitly ruled that the accused could not give evidence on an affidavit, emphasizing the legislative intent and the fundamental difference in the nature of evidence between the complainant and the accused.

Indian Bank Association Judgment:
The Court examined the Indian Bank Association judgment, which provided guidelines for expeditious trial of section 138 complaints but did not explicitly overrule or conflict with Mandvi Cooperative Bank on the issue of affidavits by the accused. The Court emphasized that the Indian Bank Association judgment should not be read out of context and did not alter the legal position established in Mandvi Cooperative Bank.

Precedential Value:
The Court reiterated the principle that in case of conflicting judgments by co-equal benches of the Supreme Court, the earlier judgment prevails unless explicitly overruled. Therefore, Mandvi Cooperative Bank remained the binding precedent.

Conclusion:
The Court concluded that the petitioners' request to adduce evidence on an affidavit was not supported by the legal framework or precedents. The petitions were dismissed, and the trial court was directed to expedite the trial.

Order:
1. The petitions stand dismissed.
2. Rule discharged.
3. No costs.

This comprehensive analysis ensures the legal terminology and significant phrases from the original text are preserved, providing a detailed understanding of the judgment's reasoning and conclusions.