Accused's defence evidence in cheque dishonour cases must follow Section 315 CrPC procedure; affidavit evidence is not enough

In a complaint under Section 138 of the Negotiable Instruments Act, the accused cannot tender defence evidence by affidavit unless he first files a written request to step into the witness box under Section 315 of the Code of Criminal Procedure. The complainant may rely on affidavit evidence under Section 145 of the Act, but that facility does not extend to the accused. If the mandatory written request is not made, the accused's evidence cannot be closed on the basis of an invalid procedure; the matter must proceed only after compliance with the prescribed step.

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Issues: (i) Whether, in a complaint under Section 138 of the Negotiable Instruments Act, the accused can be permitted to lead evidence by affidavit and without first filing a written request to step into the witness box under Section 315 of the Code of Criminal Procedure, 1973; (ii) whether the order closing the accused's evidence was sustainable when the prescribed procedure under Section 315 of the Code of Criminal Procedure, 1973 had not been followed.

Issue (i): Whether, in a complaint under Section 138 of the Negotiable Instruments Act, the accused can be permitted to lead evidence by affidavit and without first filing a written request to step into the witness box under Section 315 of the Code of Criminal Procedure, 1973.

Analysis: The statutory scheme permits the complainant to give evidence on affidavit under Section 145 of the Negotiable Instruments Act, but it does not extend the same facility to the accused. The accused may choose to depose as a witness only after waiving the protection under Section 315 of the Code of Criminal Procedure, 1973 and making a written request to that effect. The Magistrate could not direct the accused to file an affidavit in lieu of oral evidence, and the procedure adopted was contrary to the governing provisions and the settled law on the point.

Conclusion: The direction permitting the accused to lead evidence by affidavit was impermissible in law and was liable to be interfered with.

Issue (ii): Whether the order closing the accused's evidence was sustainable when the prescribed procedure under Section 315 of the Code of Criminal Procedure, 1973 had not been followed.

Analysis: Although the accused had delayed the matter and had sought adjournments, the foundational procedural step required for the accused to depose in his own case had not first been taken in writing. Once the court had not ensured compliance with that mandatory step, closure of evidence on the footing of an invalid procedure could not be sustained. The error called for correction in supervisory jurisdiction, and the matter had to be restored to the proper stage so that the accused, if so advised, could file the required written application and the trial court could then proceed according to law.

Conclusion: The order closing the accused's evidence was quashed, and the matter was remitted to the trial court for fresh consideration from the stage of a written application under Section 315 of the Code of Criminal Procedure, 1973.

Final Conclusion: The impugned orders were set aside to the extent necessary to correct the procedural illegality, and the complaints were sent back to the trial court for continuation of the proceedings in accordance with the prescribed procedure, with costs directed to be paid to the complainant.

Ratio Decidendi: In a prosecution under Section 138 of the Negotiable Instruments Act, the accused cannot be permitted to tender evidence by affidavit; if the accused desires to depose in his own defence, he must first file a written request under Section 315 of the Code of Criminal Procedure, 1973, and the trial court must proceed only thereafter according to law.

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