Accused entitled to lead evidence on affidavit in Section 138 Negotiable Instruments Act cases

The Gujarat HC held that an accused in a Section 138 Negotiable Instruments Act case is entitled to lead evidence on affidavit. The court reasoned that Chapter XVII was introduced to provide greater efficacy to cheque transactions and make procedures less cumbersome. Since Section 145 allows witness evidence by affidavit, and the accused can be a witness under Section 315 CrPC upon written request, the accused's evidence can also be by affidavit. The court quashed the trial court's impugned order and allowed the accused's application to lead evidence on affidavit.

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Issues Involved:
1. Legality and validity of the trial court's order rejecting the accused's application to submit evidence by affidavit.
2. Interpretation of Section 145 of the Negotiable Instruments Act regarding the accused's right to submit evidence by affidavit.

Summary:

Issue 1: Legality and Validity of the Trial Court's Order

By this application u/s Article 227 of the Constitution of India, the applicant - original accused calls in question the legality and validity of the order passed by the 3rd Additional Civil Judge, Himmatnagar, dated 27th March 2018 below application Exh. 128 in the Criminal Case No. 3145 of 2014. The trial court rejected the application Exh. 128 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 SCC 83.

Issue 2: Interpretation of Section 145 of the Negotiable Instruments Act

The main question was whether the accused in a complaint u/s 138 of the Negotiable Instruments Act is entitled to lead his evidence on affidavit. The Supreme Court's decision in M/s. Mandvi Cooperative Bank Limited v. Nimesh B. Thakore held that Section 145(1) confers a right on the complainant to give evidence on affidavit, but not on the accused. However, the applicant argued that the later decision of the Supreme Court in Indian Bank Association and others v. Union of India and others, reported in (2014) 5 SCC 590, allows the accused to lead evidence on affidavit.

Section 145 of the Act begins with "Notwithstanding anything contained in the Code...". This section is an exception to the normal rule that the complainant must give evidence in person. The purpose behind Section 145 is to expedite the disposal of complaints u/s 138 of the Act. Sub-section (2) indicates that there could be affidavit evidence of both witnesses for the complainant and the accused. The Karnataka High Court in Afzal Pasha v. Mohamed Ameerjan interpreted that the evidence of the accused could also be by way of affidavit, subject to Section 315 Cr.P.C.

In light of the above, the application was allowed. The impugned order passed by the 3rd Additional Civil Judge, Himmatnagar, below application Exh. 128 was quashed and set aside. The trial court was directed to permit the applicant - accused to tender his evidence including the evidence of his witnesses by way of affidavit, ensuring they are available for cross-examination when directed by the trial court.

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