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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 ..... spondent No. 2, in each of the petitions, filed complaints for commission of offence punishable under section 138 of Negotiable Instruments Act, 1881 (NI Act, 1881) alleging issue, presentment and dishnour of the cheques, drawn by the petitioners and the failure of the petitioners to pay the amount covered by the cheques despite service of the demand notice within the stipulated period. The complainant adduced evidence and upon completion of the evidence, the statement of the accused, under section 313 of the Code of Criminal Procedure, 1973 came to be recorded. In the said examination under section 313 of the Code, the petitioner No. 2/ accused stated that, he would examine himself on oath and also lead evidence in defence. 4. The petitioners, thereafter, tendered an affidavit in lieu of examination in chief of petitioner No. 2. The respondent No. 2-complainant objected to the leading of evidence on an affidavit by the accused on the premise that the accused has no right to adduce evidence by way of affidavit under section 145 of the NI Act, 1881. 5. By the impugned order, the learned Metropolitan Magistrate declined to accept the evidence of the accused on an affidavit, while g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view to delay the disposal of the complaints, deserves to be summarily dismissed. 10. Mr. Mangesh Patel, the learned counsel for the petitioner, joined the issue by canvassing a submission that the objection based on the decision in the case of Mandvi Cooperative bank (supra) overlooks the subsequent decision in the case of Indian Bank Association (supra). Mr. Patel made an endeavour to persuade the Court to hold that Supreme Court in the case of Indian Bank Association (supra) gave its imprimatur to the proposition that even an accused can adduce his evidence of an affidavit. Indian Bank Association (supra) being a subsequent judgment of co-equal strength, the latter commands more precedential value. Mr. Patel laid particular emphasis on the direction No. 5 issued by the Supreme Court in the case of Indian Bank Association (supra). 11. Mr. Patel further urged that the learned single judges of this Court in the cases of SBI Global Factors Limited (supra) and Nitin Sabe (supra) have not correctly appreciated the true import of the decision of the Supreme Court in the case of Indian Bank Association (supra). On the contrary, Gujrat High Court, in the case of Rakeshbhai Barot (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1881 putting enormous strain on the criminal justice administration system. The Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 introduced sections 143 to 147 in Chapter XVII in addition to a number of changes in Sec. 138, 141 and 142 of NI Act, 1881, as they stood then. 16. Section 143 of the NI Act, 1881 empowered the Court to try the case summarily. Section 144 liberalized method of service of summons. Section 145, with which we are primarily concerned with, enabled the Court to record the evidence of the complainant on an affidavit. Section 146 provided that the bank's slip would be prima facie evidence of dishonour of cheque. Section 147 made the offences under the Act compoundable. 17. The statement of objects and reasons appended to the Bill, inter alia, noted that not only the punishment provided in the Act had proved to be inadequate, the procedure prescribed for the Courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act. Clauses (iv) to (vi) of the statement of objects and reasons deserve to be noted. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there was no express bar in law against the accused giving his evidence on affidavit and more importantly providing a similar right to the accused would be in furtherance of the legislative intent to make the trial process swifter. 45] In para 29 of the judgment, the High Court observed as follows: "It is true that section 145 (1) confers a right on the complainant to give evidence on affidavit. It does not speak of similar right being conferred on the accused. The Legislature in their wisdom may not have thought it proper to incorporate a word `accused' with the word `complainant' in sub-section (1) of section 145 in view of the immunity conferred on the accused from being compelled to be a witness against himself under Article 20(3) of the Constitution of India...." Then in paragraph 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as well. .. .... 52] In light of the above we have no hesitation in holding that the High Court was in error in taking the view, that on a request made by the accused the magistrate may allow him to tender his evidence on affidavit and consequently, we set aside the direction as contained in sub-paragraph (r) of paragraph 45 of the High Court judgment. The appeal arising from SLP (Crl.) No. 3915/2006 is allowed. 21. Indian Bank Association and Others filed Writ Petition before the Supreme Court under Article 32 of the Constitution of India seeking appropriate guidelines, directions to be followed by all the Courts dealing with complaints under section 138 of NI Act, 1881 so as to ensure expeditious disposal of the complaints. In Indian Bank Association (supra), the Supreme Court took note of the decision in the case of Mandvi Cooperative bank (supra) and issued a number of directions. Direction 5, on which Mr. Patel placed very strong reliance, reads as under:- (5) The Court concerned must ensure that examination-in-chief, cross-examination and re-examination of the complainant must be conducted within three months of assigning the case. The Court has option of acceptin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdom 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 CrPC. 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 intended to ensure that the trial is concluded as expeditiously as possible. The said provision does not in any manner affect the right of the accused to cross examine the complainant and his witnesses. The said provision enables even the defence evidence to be led by affidavits. Thus, the said provision is purely procedural in nature. In this behalf, the Apex court has in Shreenath v. Rajesh, AIR 1998 SC 1827, has held that in interpreting any procedural law, where more th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16] We have indicated that under Section 145 of the Act, the complainant can give his evidence by way of an affidavit and such affidavit shall be read in evidence in any inquiry, trial or other proceedings in the Court, which makes it clear that a complainant is not required to examine himself twice i.e. one after filing the complaint and one after summoning of the accused. Affidavit and the documents filed by the complainant along with complaint for taking cognizance of the offence are good enough to be read in evidence at both the stages i.e. pre-summoning stage and the post summoning stage. In other words, there is no necessity to recall and re-examine the complaint after summoning of accused, unless the Magistrate passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or under Section 145 (2) of the Act suo moto by the Court. In summary trial, after the accused is summoned, his plea is to be recorded under Section 263 (g) Cr.P.C. and his examination, if any, can be done by a Magistrate and a finding can be given by the Court under Section 263 (h) Cr.P.C. and the same procedure can be followed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged that in the the case of Indian Bank Association (supra), another two Judge Bench of the Supreme Court delved into the correctness of the said view and took a diametrically opposite view. The decision in the case of Mandvi Cooperative bank (supra), in my view, still holds the field. 31. The second aspect of Indian Bank Association (supra), being a decision latter in point of time, commands precedence, may not detain the Court. The legal position is absolutely clear. 32. As noted above, in my humble opinion, there is no conflict between the decisions in the cases of Mandvi Cooperative bank (supra) and Indian Bank Association (supra). Even if one proceeds on the premise that decisions in the cases of Mandvi Cooperative bank (supra) and Indian Bank Association (supra) are irreconcilable, the rule is to apply the earliest view as the succeeding one would fall in the category of per incuriam. It would be suffice to note the statement of law in the case of Sundeep Kumar Bafna v. State of Maharashtra and Anr. AIR 2014 Supreme Court 1745.. 19] It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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