Accused in Section 138 dishonour case cannot tender evidence through affidavit as defence witness

The HC dismissed a petition where an accused in a dishonour of cheque case under Section 138 of the Negotiable Instruments Act sought permission to tender evidence through affidavit while appearing as a defence witness. The court held that an accused facing trial under the Negotiable Instruments Act is not competent to tender evidence through affidavit. The trial court correctly declined permission, relying on established SC precedent. The petition was found to lack merit and was dismissed.

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Issues involved: Whether accused can lead evidence on affidavit while appearing as a witness in defense.

The judgment addressed the issue of whether an accused, while appearing as a witness in defense, can be allowed to lead evidence on affidavit. The trial court had declined the accused's request based on previous observations in the case of Mandvi Cooperative Bank Limited vs. Nimesh B. Thakore. The petitioner argued that under the provisions of the Negotiable Instruments Act, the accused may be allowed to give evidence on affidavit unless there is a just and reasonable ground to refuse such permission. The petitioner's statement was based on documentary evidence, which cannot be deposed orally, and allowing the accused to give evidence on affidavit would not prejudice the complainant. The trial court's decision was deemed unsustainable based on these arguments.

The Apex Court, in the case of Mandvi Cooperative Bank Ltd., had considered whether the accused can give evidence on affidavit as per Section 145(2) of the Negotiable Instruments Act. The High Court had held that the accused could give evidence on affidavit, subject to certain provisions of the Code of Criminal Procedure. However, the Apex Court disagreed with this view, stating that the High Court had overreached itself and taken a course that amounted to taking over legislative functions. The High Court's reasoning was found to contain errors, including filling perceived blanks in legislation and equating the accused's evidence with the complainant's evidence in a case of a dishonored cheque.

The judgment also referenced the case of Indian Bank Association vs. Union of India, where the issue of appropriate guidelines for trying complaints under Section 138 of the Negotiable Instruments Act was discussed. The settled law from the Mandvi Cooperative Bank Ltd. case, as per the Apex Court, was clear that the accused cannot tender evidence through affidavit. Therefore, the petitioner, as an accused facing trial under the Negotiable Instruments Act, was not competent to give evidence on affidavit. The petition was dismissed as having no merit based on this legal proposition.

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