Affidavit cannot replace examination-in-chief in cheque dishonour cases under Section 145 NI Act

The Kerala HC allowed an appeal in a cheque dishonour case, ruling that the trial court's acceptance of an affidavit in lieu of examination-in-chief was illegal and unauthorized under Section 145 of the NI Act. The court held that the evidence of PW1 must be excluded due to this procedural error. The matter was remanded to the magistrate with directions to provide the accused a reasonable opportunity to tender evidence if desired, allow cross-examination by the complainant, and pronounce fresh judgment on the entire facts after following proper legal procedures.

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Issues involved: Appeal against acquittal u/s 138 of Negotiable Instruments Act due to lack of evidence. Challenge on the legality of accused filing affidavit in lieu of examination in chief.

Acquittal Challenge: Complainant appealed against accused's acquittal u/s 138 of NI Act. Complainant alleged debt repayment via dishonored cheque. Court found lack of evidence to prove debt and cheque issuance, leading to acquittal.

Legal Challenge: Appellant argued court's findings were based on surmises and accused's evidence filing was illegal. Appellant contended accused's affidavit filing was unauthorized, seeking conviction based on complainant's unchallenged evidence.

Statutory Interpretation: Appellant argued NI Act only permits complainant to file affidavit in chief, not the accused. Citing Madras High Court and Supreme Court precedents, it was contended accused's evidence by affidavit is not allowed under the Act.

Precedent Analysis: Previous cases clarified that accused cannot file proof affidavit in lieu of chief examination. Supreme Court held that accused's evidence differs from complainant's, disallowing accused's affidavit filing.

Remand Decision: Court found accused's affidavit acceptance illegal and unauthorized. Remanded the case for accused to tender evidence lawfully. Relying on SC precedent, court ordered remand for fair trial within two months.

Conclusion: Appeal allowed, impugned judgment set aside, and case remanded for fresh consideration. Accused to be given opportunity to tender evidence lawfully, followed by cross-examination. Court directed to complete the process within two months. Both parties to appear before the court on specified date.

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