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TMI Blog2016 (8) TMI 1599X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 145 of the NI Act to contend that the trial court has not taken into consideration the intent of the provision, which has been interpreted by the Apex Court in the case of Indian Bank Association v. Union of India, (2014)5 SCC 590. 4. On the other hand, the learned counsel for the respondent would submit that the trial court has rightly rejected the application in the light of the judgment of the Supreme Court in the case of Mandvi Cooperative Bank limited v. Nimesh B. Thakore, (2010)3 SCC 83. In the said case, the apex court had not agreed with the High Court which had held that Section 145(1) did confer a right on the complainant to give evidence on affidavit. But there was no similar right conferred on the accused. That the legislature apparently had posited, that the immunity conferred on the accused from being compelled to be a witness against himself under Article 20(3) of the Constitution of India, did not warrant the incorporation of the word 'accused' with the word 'complainant' in sub-section 145 of the NI Act. The High Court had gone on to hold that, merely because, Section 145 did not expressly permit the accused to give evidence on affidavit, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. " 5. In the light of the above, the point for consideration before this court is whether it would be impermissible for the accused to tender evidence by way of affidavit having regard to the tenor of Section 145 of the NI Act. It is seen that Sections 143 to 147 of the NI Act were inserted by the Negotiable Instruments (Amendment & Miscellaneous Provisions)Act, 2002. One of the objects to bring about the new legislation mentioned in the Objects and Reasons of the Act of 2002 was to provide for summary trial of the cases under the Act, with a view to speed up the disposal of cases. Section 143 provides for the cases under the NI Act being tried summarily. Hence Sections 262 to 265 of the Cr.P.C. would be applicable. Section 145 of the NI Act, provides for a departure in the manner of tendering evidence at the trial, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may offer himself as a witness in such proceedings: Provided that in proceedings under section 108, section 109 or section 110, the failure of such person to give evidence shall not be made the subject or any comment by any of the parties or the Court or give rise to any presumption against him or any other person proceeded against together with him at the same inquiry." Therefore, it is clear that having regard to the Scheme of the Cr.P.C., the legislature in its wisdom has left it open to the accused to exercise the option of examining himself as a witness for an offence punishable under Section 138 of the NI Act, in deliberately omitting any reference to the evidence of the accused by way of affidavit. For it would run against a first principle in criminal law namely, that an accused shall not be called as a witness except on his own request in writing. The evidence on behalf of the accused would include that of the accused, subject to Section 315 Cr.P.C.. If the evidence of the witnesses could be by way of affidavit in terms of Section 145 NI Act, the evidence of the accused could also be way of affidavit. A closer scrutiny of Section 145 would indicate that the same is int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for recalling a witness for cross-examination. (5) The Court concerned must ensure that examination-in-chief, cross-examination and reexamination of the complainant must be conducted within three months of assigning the case. The court has option of accepting affidavits of the witnesses, instead of examining them in court. The witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the court. 22. We, therefore, direct all the criminal courts in the country dealing with Section 138 cases to follow the abovementioned procedures for speedy and expeditious disposal of cases falling under Section 138 of the Negotiable Instruments Act. The writ petition is, accordingly, disposed of, as above." Incidentally, in the above judgment, the Supreme Court has referred to with approval the views expressed in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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