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TMI Blog2024 (6) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... matter of the Writ Petition filed by the Indian Bank Association [ 2014 (5) TMI 750 - SUPREME COURT] . In that context, the Supreme Court gave certain directions. However, despite noting the decision in the case of Mandvi Cooperative bank, especially the fact that the provisions contained in section 145 were restricted to permitting the complainant to lead evidence on affidavit and do not provide the same dispensation to the accused, Indian Bank Association did not struck a discordant note. The decisions of this Court in SBI Global Factors Limited [ 2021 (3) TMI 490 - BOMBAY HIGH COURT] and NITIN VERSUS PRAKASHRAO [ 2024 (1) TMI 1292 - BOMBAY HIGH COURT] have correctly held that the question sought to be raised by the petitioners is no longer res integra and stands concluded against the accused by the judgment of the Supreme Court in the case of Mandvi Cooperative bank. This Court does not find any reason to take a different view of the matter than the one taken by the coordinate Benches in the cases of SBI Global Factors Limited and Nitin Shriram Sabe. Therefore, the invitation of Mr. Patel (petitioner) to take a different view of the matter is declined and the question referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness box. 6. Being aggrieved, the petitioners-accused have invoked writ jurisdiction. 7. The substance of the petition is that if viewed in the light of the object of insertion of the provisions contained in section 143 to 147 of the NI Act, 1881, by Act, 55 of 2002, the accused also has a right to adduce his evidence on an affidavit. The learned Metropolitan Magistrate was in error in declining to accept such evidence on affidavit by placing reliance on the decision of the Supreme Court in the case of Mandvi Cooperative bank Limited vs. Nimesh B. Thakore (2010) 3 Supreme Court Cases 83, as the subsequent judgment of the Supreme Court in the case of Indian Bank Association and Ors. vs. Union of India and Ors. AIR 2014 Supreme Court 2528., had further expanded the scope of provisions contained in section 145 of the NI Act, 1881, with a view to give impetus for expeditious conclusion of the proceedings under section 138 of NI Act, 1881 and the said decision was not properly construed by the learned Magistrate. Thus, to advance the object of the provisions contained in sections 143 and 145 of the NI Act, 1881, the petitioners/ accused deserve to be permitted to adduce the evidence on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Cri. Petition No. 1684 of 2016, Dt. 09/08/2016, have appreciated the ratio of the judgment of Indian Bank Association (supra) in a correct perceptive as it advances the object of inserting section 145 of the NI Act, 1881. 12. Mr. Patel further urged, the omission to include the word accused in section 145 of the NI Act, 1881 is for an obvious reason which the learned single Judges of the Karnataka High Court and Gujrat High Court have expounded in the aforesaid decision. It was further urged that, at any rate, no element of prejudice is likely to be caused to the complainant if the accused is permitted to adduce evidence on an affidavit. The complainant would have effective opportunity to cross examine the accused. Therefore, a procedure which advances the cause of expeditious conclusion of the complaint under section 138 of NI Act, 1881 deserves to be preferred, submitted Mr. Patel. 13. In the case of SBI Global Factors Limited (supra) and Nitin Sabe (supra), the learned single judge of this Court have held that the question sought to be raised by the accused, like petitioner herein, is no longer res integra and stands concluded by the decision of the Supreme Court in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence of the complainant. (v) To prescribe procedure for servicing of summons to the accused or witness by the Court through speed post or empanelled private couriers. (vi) To provide for summary trial of the cases under the Act with a view to speeding up disposal of cases. 18. Evidently, the Parliament intervened to give impetus to expeditious disposal of the complaints under section 138 of the NI Act, 1881, by unshackling the Courts with procedural constraints prescribed under the Code, 1973. Yet, the Parliament, as is evident from the text of section 145, adopted a restrained approach in the matter of recording of evidence on affidavit and restricted it to the complainant. Immediately after the insertion of section 145 in NI Act, 1881 questions were raised as to whether the omission of the word, accused was conscious and deliberate or despite such omission the Courts can permit even the accused to adduce the evidence on an affidavit. 19. This Court while dealing with a large number of petitions wherein the various facets of the amended provisions of NI Act, 1881 came up for consideration, inter alia, held that the evidence in defence like the complainant s evidence also be giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. On a bare reading of section 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. 47] 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on as and when there is direction to this effect by the Court. (emphasis supplied) 22. Special emphasis was laid on the observations, the Court has option of accepting affidavits of the witnesses. The word witnesses , according to Mr. Patel, subsumes in its fold an accused. Therefore Indian Bank Association (supra) expands the scope of section 145 and permits the Court to record the evidence of accused on affidavit. To this extent, the Indian Bank Association (supra) deviates from the decision of the Supreme Court in the case of Mandvi Cooperative bank (supra). 23. To bolster up the aforesaid submission, Mr. Patel invited the attention of the Court, to the decision of the Gujrat High Court in the case of Rakeshbhai Barot (supra ) and Karnataka High Court in the case of Afzal Pasha (supra). 24. I have perused the judgments in the cases of Rakeshbhai Barot (supra) and Afzal Pasha (supra). Rakeshbhai Barot (supra) substantially followed the reasoning of the decision of the Karnataka High Court in the case of Afzal Pasha (supra) . It would, therefore, be expedient to extract the observations in the case of Afzal Pasha (supra), which reads as under:- 2) The petition is filed by the accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice. (See: KSL Industries v. Khandelwal, 2006(1) Mh.LJ (Cri) 86). The Apex Court in Mandvi Cooperative Bank Limited, (supra), has not examined the matter in the above perspective. On the other hand, the view taken and the directions issued in a more recent decision of the Apex Court, in the case of Indian Bank Association (supra) does contemplate evidence by affidavit by the accused. . . 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. 25. Evidently, the Karnataka High Court has proceeded on the premise that the decision of the Supreme Court in the case of Indian Bank Association (supra) takes a divergent view from that of Mandvi Cooperative bank (supra), and Indian Bank Association (supra), being a latter decision, it can be safely applied as both the judgments were rendered by Benches of co-equal strength. 26. Two questions come to the fore. First whether Indian Bank Association (supra) has taken a divergent view ? Second, even if one proceeds on the premise that there is a deviation from the decision in the case of Mandvi Cooperative bank (supra), wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with, technically the commission of the offence stands completed and it is for the accused to show that no offence could have been committed by him for specific reasons and defences. 28. From a correct reading of the decision in the case of Indian Bank Association (supra), I find it rather difficult to accede to the submission on behalf of the accused that the said decision deviates from the view taken by the Supreme Court in the case of Mandvi Cooperative bank (supra) in the matter of permitting the accused to lead evidence on an affidavit. The question that arose for consideration in the case of Mandvi Cooperative bank (supra) was in the context of the import of amended section 143 and 145 of the NI Act, 1881, in particular. On the contrary, a larger issue of expeditious completion of the trial in the complaints under section 138 of the NI Act, 1881 was the subject matter of the Writ Petition filed by the Indian Bank Association (supra). In that context, the Supreme Court gave certain directions. However, despite noting the decision in the case of Mandvi Cooperative bank (supra), especially the fact that the provisions contained in section 145 were restricted to permitting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or regulation, which was not brought to the notice of the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Co-equal or Larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam. (emphasis supplied) 33. Thus, this Court regrets its inability to agree with the view of the Karnataka High Court in the case of Afzal Pasha (supra) on both the counts namely there being an inconsistency in the decisions in the cases of Mandvi Cooperative bank (supra) and Indian Bank Association (supra) and Indian Bank Association (supra), being a latter decision, deserves to be followed. 34. At this stage, it must be noted that apart from the decisions of lea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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