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TMI Blog2023 (11) TMI 1121X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed the provisions of Section 145 of the said Act, and the evidence of the accused by way of affidavit is not permissible in law. Relying on the evidence of accused DW1, along with the material contradiction of PW2, the trial Court has acquitted the accused. Since the accused had not adduced his evidence in accordance with law, the same cannot be looked into by this Court. Hence, it is just and proper to remit the matter to the trial Court with a direction to provide opportunity to the accused to adduce his evidence in accordance with law. Accordingly, complainant has made out a ground to interfere with the impugned judgment of acquittal and also to remand the case to the trial Court. Judgment of acquittal dated 03rd February, 2014 pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling upon the accused to repay the cheque amount. Despite service of notice, the accused has neither repaid the cheque amount nor replied to the Notice. Hence, the complainant filed the complaint. The trial Court has taken cognizance against the accused for commission of offence punishable under Section 138 of Negotiable Instruments Act, 1881 and summons were issued. Pursuant to issuance of summons, the accused appeared before the Court, pleaded not guilty and claimed to be tried. 4. To prove the case complainant got himself examined as PW1 and seven documents were marked as Exhibits P1 to P7. On closure of complainant's side evidence, statement under Section 313 of Code of Criminal Procedure was recorded. Accused has totally denied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial on record, the following points would arise for my consideration in this appeal: 1. Whether the appellant/complainant has made out a ground to remand the matter to the trial Court for fresh disposal in accordance with law? 2. What order? 8. My answer for the above points is as under: Point No.1: in the affirmative Point No.2: as per final order Regarding Point No.1: 9. It is the case of the complaint that in order to purchase a house the accused approached the complainant during the first week of October, 2008 and availed sum of Rs.3.00 lakh as loan and agreed to repay the same within six months along with interest. When the complainant demanded the accused to repay the amount, the complainant issued cheque N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 143 it is clear that the legislature provided for the complainant to give his evidence on affidavit and did not provide for the accused to similarly do so. But the High Court thought that not mentioning the accused along with the complainant in sub-section (1) of Section 145 was merely an omission by the legislature that it could fill up without difficulty. Even though the legislature in their wisdom did not deem it proper to incorporate the word `accused' with the word `complainant' in Section 145(1), it did not mean that the Magistrate could not allow the accused to give his evidence on affidavit by applying the same analogy unless there was a just and reasonable ground to refuse such permission. There are two errors apparent in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served as under: 11. So, when the law provides specific procedure as to how the evidence has to recorded, the same has to be followed as it is and it is only because generally in exceptional cases, the accused is examined and t is the legislative intent that the examination of accused has to be only after he/she enters the witness box. Therefore, the trial Court without looking to the said aspect has permitted the accused to file an affidavit in lieu of chief examination and accepted such evidence and granted an order of acquittal. Though a complainant has an authority to file affidavit in lieu of chief examination, this right given to the complainant cannot be extended to an accused. Therefore, without expressing any opinion on merits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s remitted back to the trial Court with a direction to provide opportunity to the accused to adduce his oral evidence in accordance with law and also as per the judgments of Hon'ble Supreme Court as observed by this Court in the body of the judgment; 4. The trial Court is also directed to provide an opportunity to both the parties to adduce their evidence, if any; 5. Both the parties are directed to appear before the trial Court on 11th December, 2023 without seeking any further notice from the trial Court in this regard; 6. The trial Court is directed to dispose of the case within six months from the date of receipt of certified copy of this judgment as the matter is of the year 2010; 7. Registry to send the copy of this ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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