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TMI Blog2019 (11) TMI 1830X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Indian Bank Association and others vs. Union of India and others, (2014) 5 SCC 590, it has been observed that the Court in the complaint case under the provisions of Negotiable Instruments Act may allow the accused to give his evidence on affidavit unless there is a just and reasonable ground to refuse such permission. Statement of accused, in this case, is based on lot of documentary evidence, which cannot be deposed in oral statement, as such, allowing of permission to accused to give his evidence on affidavit will not cause any prejudice to complainant and order of trial Court relying on observations in case of Mandvi Cooperative Bank Ltd. (supra) is not sustainable. 4. The Apex Court in case of Mandvi Cooperative Bank Ltd. (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ph 31 of the judgment it observed: ".... Merely because, section 145(1) does not expressly permit the accused to do so, does not mean that the Magistrate cannot allow the accused to give his evidence on affidavit by applying the same analogy unless there is just and reasonable ground to refuse such permission. There is no express bar on the accused to give evidence on affidavit either in the Act or in the Code..... I find no justified reason to refuse permission to the accused to give his evidence on affidavit subject to the provisions contained in sections 315 and 316 of the Code." 46. On this issue, we are afraid that the High Court overreached itself and took a course that amounts to taking-over the legislative functions. 32. On a ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence 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." 5. After discussing the law on the point, the Apex Court did not agree with observations of High Court allowing permission to accused to lead evidence on affidavit and observed in para 52 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourts while trying complaints under Section 138 of the Negotiable Instruments Act and the issue before the Apex Court was to ensure expeditious disposal of such cases. Though, reference to observations of the Apex Court in case of Mandvi Cooperative Bank Ltd. (supra) was made in para 12 of the judgment but as already discussed the law settled by the Apex Court in that case is clear and has not been set aside or dissented so far. Even that was not in issue before the Apex Court in case of Indian Bank Association (supra). 8. In view of clear proposition of law as laid down in Mandvi Cooperative Bank Ltd. (supra) by Hon'ble Apex Court, the petitioner being an accused, who is facing trial in complaint under the provisions of Negotiable Ins ..... X X X X Extracts X X X X X X X X Extracts X X X X
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