Cheque dishonour evidence rules: defence affidavit evidence was impermissible, acquittal set aside, and remand ordered for fresh trial.

In a Section 138 Negotiable Instruments Act prosecution, defence evidence cannot be received by affidavit in place of examination-in-chief, even though the complainant may depose by affidavit. An acquittal based on such impermissible defence evidence was held unsustainable, and interference with the appellate acquittal was justified. The request under Section 391 CrPC to adduce additional evidence, including examination of a handwriting expert and production of the report, was allowed because the matter was being remanded and proper proof of evidence was required for fair adjudication. The complaint dismissal at appellate stage was set aside and the matter remitted for fresh consideration in accordance with law.

---

---

Issues: (i) whether interference was warranted with the appellate acquittal in a prosecution under Section 138 of the Negotiable Instruments Act, 1881; (ii) whether permission should be granted to adduce additional evidence under Section 391 of the Code of Criminal Procedure, 1973.

Issue (i): whether interference was warranted with the appellate acquittal in a prosecution under Section 138 of the Negotiable Instruments Act, 1881.

Analysis: The complaint was founded on dishonour of a cheque and the defence evidence of the accused had been recorded by affidavit instead of examination-in-chief. The legal position recognised that, while the complainant may depose by affidavit in a cheque dishonour case, the same procedure is not available to the accused. Evidence tendered in a manner contrary to the prescribed procedure could not be relied upon. On that basis, the acquittal rendered on acceptance of such defence evidence was held unsustainable.

Conclusion: Interference with the acquittal was justified and the challenge succeeded.

Issue (ii): whether permission should be granted to adduce additional evidence under Section 391 of the Code of Criminal Procedure, 1973.

Analysis: The request was to examine the handwriting expert and place the report in evidence. Since the matter was being remitted for fresh disposal and an opportunity was required for proper proof of evidence, permitting additional evidence was considered appropriate to secure a fair adjudication.

Conclusion: The application for additional evidence was allowed.

Final Conclusion: The dismissal of the complaint at the appellate stage was set aside, the matter was remanded to the trial court for fresh consideration, and both sides were directed to lead evidence in accordance with law.

Ratio Decidendi: Defence evidence in a cheque dishonour prosecution cannot be received by affidavit in place of examination-in-chief, and an acquittal founded on such impermissible procedure is liable to be set aside with remand for proper trial.

---