Affidavit evidence by accused in Section 138 proceedings cannot be claimed as of right; acquittal set aside and matter remanded.

In a prosecution under Section 138 of the Negotiable Instruments Act, the accused's chief-examination by affidavit was treated as impermissible because the accused has no automatic right to give evidence by affidavit under Section 145. The court held that an acquittal founded on evidence recorded in that manner could not be sustained, and the proper course was to set aside the result and remit the matter for fresh disposal. The parties were to be given an opportunity to adduce evidence in accordance with law before the trial court.

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Issues: Whether the appellant made out a ground to remand the matter to the trial Court for fresh disposal on the ground that the accused's chief-examination by affidavit was impermissible in a proceeding under the Negotiable Instruments Act, 1881.

Analysis: The appeal arose from an acquittal in a complaint under Section 138 of the Negotiable Instruments Act, 1881. The accused had adduced evidence as DW1 by filing an affidavit in lieu of oral chief-examination. The Court relied on the governing procedure under Section 145 of the Negotiable Instruments Act, 1881 and the principle that, unlike the complainant, the accused cannot claim an automatic right to lead evidence by affidavit. Since the acquittal had been founded on evidence recorded in a manner not permitted by law, the Court held that the evidence of the accused could not be acted upon and that the proper course was to remit the matter for fresh adjudication after affording an opportunity to lead evidence in accordance with law.

Conclusion: The issue was answered in the affirmative. The case was remanded to the trial Court for fresh disposal after permitting the accused and the parties to adduce evidence in accordance with law.

Ratio Decidendi: In a prosecution under Section 138 of the Negotiable Instruments Act, 1881, the accused cannot claim a right to adduce chief-examination by affidavit under Section 145, and an acquittal founded on such impermissible evidence may be set aside with remand for fresh consideration.

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