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TMI Blog2019 (1) TMI 2047X X X X Extracts X X X X X X X X Extracts X X X X ..... e offence where the drawer fails to make payment of the amount of money covered by the cheque to the payee or the holder in due course, as the case may be, within 15 days of the receipt of the notice of dishonour, and the dishonour is for specified reasons. Section 139 raises a rebuttable presumption that the holder of a cheque received the cheque for the discharge, in whole or in part, of any, debt or other liability, Section 143 makes applicable the procedure of summary trials as prescribed in the Code. 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 evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt can direct the witnesses of the complainant and accused to remain present for cross - examination as and when the Ld. Court calls for. 4) The Hon'ble Supreme Court has passed this judgment after considering the decision in the case of Mandavi Cooperative Bank Ltd. v/s. Nimesh Thakore and, therefore, the directions given in this judgment should be followed by all the courts of the country. 5) Before disposing of the present application, the court should take into consideration that, not only the courts should follow the laws, but they should also follow the directions given by the Hon'ble Apex Court. In the aforesaid circumstances, by submitting this application we, the accused, as well as our witnesses, propose to give our evidence on affidavit by way of examination-in-chief. Therefore, an appropriate order be passed for giving evidence of the accused as well as of the witnesses of the accused on affidavit by way of examination-in-chief. 3. The court below adjudicated the application Exh. 128 and rejected the same by placing strong reliance on the decision of the Supreme Court in the case of M/s. Mandvi Cooperative Bank Limited v. Nimesh B. Thakore, reported in (2010) 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sses to give their evidence on affidavit. 9. Section 4 of the Code, inter alia, states that all offences under any other law (i.e. laws other than the IPC) shall be investigated, enquired into, tried and otherwise be dealt with according to the provisions of the Code, but subject to any enactment for the time being in force regulating, inter alia, the manner of trying or dealing with such offences. The Act is a law which regulates the manner in which the trial of the offence under Section 138 shall be conducted. The application of the procedure prescribed by the Code is, therefore, subject to the procedure prescribed by the Act, and the provisions of the Act would have an overriding effect. This intention of the Legislature is also demonstrated by Section 5 of the Code, which saves the existing special and local laws, inter alia, prescribing special procedure, on the coming into force of the Code. 10. Section 145 of the Act begins with words Notwithstanding anything contained in the Code.... . Therefore, Section 145 of the Act is an exception to the normal rule as envisaged in Section 200 of the Code, that the complainant would be required to give his evidence by appearing in perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing. (3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint. 12. Therefore, the dictate of the law is that the summary trial should normally be continued from day to day until its conclusion and the endeavour of the court should be to conclude the trial within six months from the date of filing of the complaint. 13. Section 145 of the Act has also to be read and understood keeping in mind the orientation of the law contained in Chapter XVII of the Act. The complainant is normally the driving force behind the complaint, and the most important witness in any, such complaint. In spite of this being the position, Section 45(1) of the Act carves out an exception to the normal rule, and provides that the complainant may give his evidence on affidavit which may, subject to just exceptions, be read in evidence in any enquiry, trial and other proceedings under the Code. This is an enabling provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed into by a learned Single Judge of the Karnataka High Court in the case of Afzal Pasha v. Mohamed Ameerjan (Criminal Petition No. 1684 of 2016, decided on 9th August 2016). I may quote the relevant observations made by the learned Single Judge of the Karnataka High Court thus: 2. The petition is filed by the accused, against whom a complaint is filed before the court below alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (Hereinafter referred to as the NI Act, for brevity). The petitioner is contesting the case. At the stage when the case was set down for the evidence of the accused, he is said to have filed an application under Section 145(2) of the NI Act, seeking permission of the court to file an affidavit in lieu of oral evidence. The trial court having rejected the application on the ground that the same is not permissible, the present petition is filed. 3. The learned counsel for the petitioner places reliance on the language of 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. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . There are two errors apparent in the reasoning of the High Court. First, if the legislature in their wisdom did not think it proper to incorporate a word accused with the word complainant in section 145(1)......, it was not open to the High Court to fill up the self perceived blank. Secondly, the High Court was in error in drawing an analogy between the evidences of the complainant and the accused in a case of dishonoured cheque. The case of the complainant in a complaint under section 138 of the Act would be based largely on documentary evidence. 48. The accused, on the other hand, in a large number of cases, may not lead any evidence at all and let the prosecution stand or fall on its own evidence. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trials. Section 315 thereof reads as follows:- 315. Accused person to be competent witness.- (1) Any person accused of an offence before a Criminal Court shall be a competent witness for the defense and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial: Provided that- (a) he shall not be called as a witness except on his own request in writing; (b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial (2) Any person against whom proceedings are instituted in any Criminal Court under section 98, or section 107, or section 108, or section 109, or section 110, or under Chapter IX or under Part B, Part C or Part D of Chapter 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 aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons. (2) The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. The court, in appropriate cases, may take the assistance of the police or the nearby court to serve notice on the accused. For notice of appearance, a short date be fixed. If the summons is received back un-served, immediate follow up action be taken. (3) The court may indicate in the summons that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, the court may pass appropriate orders at the earliest. (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 cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een relied upon and followed. In Harischandra Biyani vs. Stock Holding Corporation of India Ltd. (supra), the Bombay High Court has again applied and followed the decision in KSL and Industries Ltd., vs. Mannalal Khandelwal (supra). In Magma Leasing Ltd. vs. State of West Bengal (supra), there is a reference to KSL and Industries Ltd., vs. Mannalal Khandelwal (supra), and the same has been referred to and relied upon in holding that Section 145 enables the accused or defence to lay evidence by affidavit. In Rajesh Agarwal vs. State and another, (supra), again the decision in KSL and Industries Ltd., vs. Mannalal Khandelwal (supra), has been applied and the consistent view taken in these decisions has been approved and applied by the Supreme Court in direction no. 5, referred to hereinabove. Hence, in keeping with judicial propriety, the later judgment of the Apex court can safely be applied when the divergent view is that of a co-ordinate bench of the same court. Accordingly, this petition is allowed. The trial court is directed to receive the affidavit evidence of the petitioner on his request, in accordance with Section 315 Cr.P.C. and proceed with the pending case in accordance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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