2025 (8) TMI 483 - HC - Indian Laws

Magistrate's orders quashed for procedural errors under Section 315 Cr.P.C and Section 145 NI Act requirements

The HC quashed and set aside the Magistrate's orders dated 06.12.2024 due to procedural irregularities in handling the accused's examination under Section ... Dishonour of Cheque - no reason cited in the application to justify the grant of leave for cross-examination - violation of principles of natural justice - Accused has not replied to these notices, pursuant to which the complaints came to be filed before the Magistrate. Unfortunately, instead of the Magistrate proceeding with these cheque bounce cases, by filing a summary procedure provided under Section 260 of Cr.P.C., the Magistrate recorded the Plea of the Accused, who pleaded to be tried. - Instead of recording a written waiver of his right under Section 315 Cr.P.C., in terms of Clause (a) of the proviso to Sub-Section 1 of Section 315, the Court directly fixed the matter on 07.10.2024, supposedly for the Accused to file an affidavit in evidence. There are two serious flaws which the learned Magistrate committed at this stage. HELD THAT:- The Magistrate has acted with material irregularities whilst allowing for the above procedure which is contrary to the provision of Section 145 of the Negotiable Instruments Act and to the aforementioned case law. The correct course that ought to have been adopted by the Magistrate at this stage was for the Magistrate to direct the Accused, if he desired to examine himself, to place on record his request in writing for such examination. On such a request being placed on record, the Trial Court ought to have considered the application, and if the Accused was permitted to lead his evidence, and if he sought production of any documents, he would have to make out a case for such documents to be allowed in evidence, subject to the rules of evidence. The application would be subject to dealing with such objections as may be raised by the Complainant. Instead of taking the above course, the Magistrate thereafter allowed for three adjournments on 07.10.2024, 08.11.2024 and 06.12.2024 on which dates the Accused remained absent. These dates were given for the Accused to lead his evidence, and ultimately on 06.12.2024, when the Accused once again sought time, stating that he had to travel out of Goa for business, his application was rejected and his evidence was closed. In Soni Anilkumar Prahladbhai v. State of Gujarat, [2022 (6) TMI 1482 - GUJARAT HIGH COURT], the High Court of Gujarat, whilst deciding on whether the Trial Court was justified in refusing to accept the examination in chief of the accused which was recorded without the accused having submitted a written request to be examined as a witness under Section 315 Cr.P.C., held that 'Admittedly, no written request made to the concerned court as envisaged in Section 315 of the Cr.P.C. Keeping in mind this peculiar and distinguishing fact and the mandate of Section 315 of the Cr.P.C., in my considered opinion, both the courts below have committed no mistake in not accepting the examination-in-chief of the present petitioner.' There is no doubt, that if the application of the Accused under Section 315 was in fact given in writing, and the Accused had sought adjournments on the three dates referred above, the Magistrate would have been fully justified in closing the evidence. There has been a gross delay on the part of the Accused in leading his own evidence and such an order, considering the delay of almost six months since the recording of the 313 Statement till the evidence was closed was well justified. The Accused, if he so desires, shall file a written application placing on record his desire to act as a witness in his own case in terms of Clause (a) of the proviso to Sub-Section 1 of Section 315 Cr.P.C. After this application is filed, the Magistrate shall permit the Accused to lead his oral evidence by personally stepping into the witness box and deposing in the matter. The Accused shall not be permitted to produce any documentary evidence unless he justifies the production of such evidence and specifically applies for the same during the course of his evidence - The Magistrate shall also take into consideration the fact that no reply was filed to the notice under Section 138 issued by the Complainant prior to instituting the complaint. After evidence of the Accused is completed, if the Accused seeks to lead further evidence through any witness, the Magistrate shall not grant the same mechanically but shall consider, on an application filed by the Accused to that effect, shall decide the necessity of examining such witnesses after considering the defence raised by the Accused during the cross examination of the Complainant. The impugned orders dated 06.12.2024 are quashed and set aside. The case shall stand relegated to the stage where the Accused shall file his statement/application under Section 315 in the manner stated above. The Magistrate shall then proceed to record the evidence of the Accused and follow the procedure referred - petition allowed by way of remand. ISSUES: Whether an accused in proceedings under Section 138 of the Negotiable Instruments Act can lead evidence by filing an affidavit in lieu of examination-in-chief.Whether the Magistrate is required to record a written waiver and application by the accused under Clause (a) of the proviso to Sub-Section 1 of Section 315 Cr.P.C. before allowing the accused to examine himself as a witness.Whether the Magistrate's procedure allowing the accused to lead evidence by affidavit without a written request complies with the provisions of the Negotiable Instruments Act and the Criminal Procedure Code.The scope and applicability of Supreme Court directions in Indian Banks Association v. Union of India regarding expeditious disposal and acceptance of affidavits in Section 138 NI Act cases.Whether the directions in Indian Banks Association (2014) constitute a departure from the Supreme Court's earlier ruling in Mandvi Co-op Bank Ltd. (2010) on the accused's right to give evidence by affidavit.Whether the Magistrate's closure of the accused's evidence for delay without compliance with procedural safeguards under Section 315 Cr.P.C. was justified.The proper procedure to be followed by the Magistrate when the accused seeks to lead evidence in a Section 138 NI Act complaint trial. RULINGS / HOLDINGS: The accused cannot be permitted to file an affidavit in lieu of examination-in-chief under Section 138 of the Negotiable Instruments Act, as Section 145(1) expressly provides for the complainant's evidence on affidavit but does not extend this right to the accused. The Magistrate's allowance of such evidence by affidavit is contrary to the statute and established case law.Before the accused can lead evidence by examining himself, the Magistrate must record a written waiver and application by the accused in terms of Clause (a) of the proviso to Sub-Section 1 of Section 315 Cr.P.C.; failure to do so renders the procedure invalid.The Magistrate's direction to the accused to lead evidence by filing an affidavit without a written request and waiver is a material irregularity and contrary to the provisions of Section 145 of the Negotiable Instruments Act and Sections 315 and 316 Cr.P.C.The Supreme Court's directions in Indian Banks Association (2014) for expeditious disposal and acceptance of affidavits pertain to the complainant's evidence and do not confer a right on the accused to give evidence on affidavit; thus, these directions do not override the Mandvi Co-op Bank Ltd. (2010) ruling.The earlier Supreme Court decision in Mandvi Co-op Bank Ltd. (2010) remains binding and authoritative, holding that the accused does not have the right to give evidence on affidavit in Section 138 NI Act proceedings; any contrary view is per incuriam and not binding.The Magistrate was justified in closing the accused's evidence due to delay, but only if the accused had complied with the procedural requirement of filing a written application under Section 315 Cr.P.C.; absence of such compliance vitiates the closure order.The correct procedure requires the accused to file a written application expressing the desire to act as a witness, after which the Magistrate may permit oral evidence and consider applications for production of documents, subject to objections and relevance. RATIONALE: The Court applied the statutory framework of the Negotiable Instruments Act, specifically Sections 138, 143, 145, and the Criminal Procedure Code provisions under Sections 313, 315, and 316, emphasizing the distinct roles and evidentiary rights of complainant and accused.The Court relied heavily on binding Supreme Court precedents, notably Mandvi Co-op Bank Ltd. (2010), which clarified that the legislature deliberately confined affidavit evidence to the complainant and did not extend this right to the accused, reflecting constitutional protections under Article 20(3).The Court distinguished the Indian Banks Association (2014) directions as procedural guidelines aimed at expediting trials and facilitating affidavit evidence for complainants, not as a substantive change in accused's evidentiary rights.The Court underscored the principle that judicial bodies cannot 'fill up' legislative omissions or modify statutory provisions under the guise of analogy or expediency, as this would amount to 'taking over the legislative functions.'The Court noted the fundamental difference in the nature of evidence typically led by complainants (documentary) and accused (often oral and rebuttal evidence), justifying the legislative distinction in affidavit rights.The Court recognized the importance of procedural safeguards under Section 315 Cr.P.C. requiring written waiver by the accused before self-examination, to protect constitutional rights and ensure fair trial standards.The Court exercised supervisory jurisdiction under Article 227 of the Constitution to correct procedural irregularities and ensure adherence to statutory mandates, while balancing the need for expeditious trial completion.