TaxTMI 
TaxTMI 
2021 (3) TMI 490
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...., has impugned Order dated 1st April 2019 passed by the learned Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai, in C.C. No.4311/SS/2015, thereby rejecting its application dated 1st April 2019, for discarding evidence of accused and for directions to the accused to lead oral evidence. 3. Heard Mr.Thakur, learned counsel for the petitioner, Mr.Palkar, learned A.P.P. for respondent No.1-State and Mr.Modi, learned counsel for respondent Nos.2 to 4. Perused record. 4. The record reveals that, the petitioner has instituted a complaint bearing C.C. No.4311/SS/2015 in the Court of learned Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai, under Section 138 read with 141 of the Negotiable Instruments Act, 1881. After receipt....
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....ide for the accused to give his evidence, like the complainant, on affidavit. But the High Court argued that there was no express bar in law against the accused giving his evidence on affidavit and more importantly providing a similar right to the accused would be in furtherance of the legislative intent to make the trial process swifter. In paragraph 29 of the judgment, the High Court observed as follows: "It is true that section 145(1) confers a right on the complainant to give evidence on affidavit. It does not speak of similar right being conferred on the accused. The Legislature in their wisdom may not have thought it proper to incorporate a word `accused' with the word `complainant' in sub-section (1) of section 145 i....
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.... mean that the Magistrate could not allow the accused to give his evidence on affidavit by applying the same analogy unless there was a just and reasonable ground to refuse such permission. There are two errors apparent in the reasoning of the High Court. First, if the legislature in their wisdom did not think "it proper to incorporate a word `accused' with the word `complainant' in section 145(1)......", it was not open to the High Court to fill up the self perceived blank. Secondly, the High Court was in error in drawing an analogy between the evidences of the complainant and the accused in a case of dishonoured cheque. The case of the complainant in a complaint under section 138 of the Act would be based largely on documentary ev....
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.... 1) Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons. 2) MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back un-served, im....
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....nt of learned Magistrate having permitted the respondent-accused to adduce his evidence by way of an affidavit and the decision pointed out as well as the provisions to which attention is drawn, clearly indicating that such a direction could not have been given due to no such a stipulation is contained in the relevant section the relevant part of the order impugned will be required to be quashed and set aside. Similarly, for expeditious disposal of said case, the direction deserves to be given, as canvassed." 8. In view of the elucidation of law by the Hon'ble Supreme Court in the case of Mandvi Co-op. Bank Ltd. (supra), it is clear that, an accused in a proceedings under Section 138 of the Negotiable Instruments Act cannot be permitted ....