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TMI Blog2020 (3) TMI 1473X X X X Extracts X X X X X X X X Extracts X X X X ..... ving a reasonable opportunity to the accused to tender the evidence, if he so desires - Appeal allowed by way of remand. - THE HONOURABLE MR. JUSTICE SUNIL THOMAS FOR THE PETITIONER : ADV. SRI.S.RAJEEV FOR THE RESPONDENTS : ADV. SMT.R.RAJITHA, ADV. SRI.P.SANTHOSH PODUVAL JUDGMENT The complainant in S.T.No.501 of 2005 of the Judicial First Class Magistrate-III, Thrissur aggrieved by the acquittal of the accused in a complaint under section 138 of the Negotiable Instruments Act has preferred this appeal. 2. The complainant alleged that the accused was known to him for the past several years and that he had borrowed a sum of Rs.4,35,000/- on 15.07.2003. Towards the discharge of that legally enforceable debt, a cheque dated 22.11.2004 was issued to him. The cheque on presentation was returned dishonoured. A statutory notice was issued, which was replied. Alleging that, by non payment of the money covered by the cheque, accused has committed an offence punishable under section 138 of the Negotiable Instruments Act, complainant approached the court below by filing the criminal complaint. Accused appeared and contested the proceedings. On the side of the complainant, PW1 was examined an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed was liable to be eschewed, it was contended. It was further contended that, in the light of the above evidence, the only material before the court below was the evidence tendered by the complainant through the examination of PW1. Since there was no rebuttal of the statutory presumptions arising from the evidence of PW1, court below ought to have accepted it and convicted the accused, it was argued. 7. Refuting the above contentions, the contention set up by the learned counsel for the accused was that, section 145 of the NI Act read along with the decision of the Honourable Supreme Court in Indian Bank Association and Ors. v. Union of India (UOI) and Ors. (AIR 2014 SC 2528) would show that the benefit of tendering evidence in chief by way of filing affidavit was available not only to the complainant, but also to the accused. It was further contended that, recording of evidence on the side of the both parties was only procedural formality and even after there was any infraction of statutory provision, it will not vitiate trial. It was further contended that, in the light of section 465 of the Cr.P.C, the irregularity, if any in accepting the evidence in chief of the accused by wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43 and 145 of the NI Act, it was held that, it was clear that the legislature provided for the complainant to give his evidence on affidavit, but did not provide similarly to the accused to similarly do so. It was held that the view taken by the High Court that non mentioning of the accused along with the complainant in subsection (1) to section 145 was merely an omission by the legislature that it could fill up without difficulty was not correct. It was held that, in a large number of cases, the accused may not lead any evidence at all and let the prosecution stand or fall on its own evidence. 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 discharge of any debt or liability. The Supreme Court held that, this was the basic difference between the nature of the complainant's evidence and the evidence of the accused in a case of dishonoured cheque. Court concluded that, it was wrong to equate the defence evidence with the complainant's evidence and to extend the same o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning the case and that the Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Direction (5) was that the witnesses to the complaint and accused must be available for cross examination as and when there was direction by the Court. The above direction was interpreted as a direction that the accused was permitted to be examined in chief by way of affidavit. The direction did not specifically state that the accused was also entitled to be examined by way of affidavit in chief. I am not inclined to accept the argument that the above decision lay down a principle that accused was entitled to be examined in chief by way of affidavit, which was not contemplated with the statute. 14. Learned counsel for the petitioner relied on the decision in State of Maharashtra and Ors. v. Gopalprasad govindprasad Agarwal and Ors. (AIR 1999 SC 1507). That was a case which arose under the Prevention of Food Adulteration Act, 1954. Supreme Court though took note of the fact that there was dispute regarding the consent granted, Supreme Court refused to remand the matter taking note of the fact that the offences were committed almost 20 years prior to the decision. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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