TaxTMI 
TaxTMI 
2025 (8) TMI 483
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.... these complaints under Section 138 of the Negotiable Instruments Act. Criminal Case No. OA/30/2020 pertains to a cheque dated 17.10.2019 for an amount of Rs. 5,00,000/- whilst Criminal Case No. OA/925/2019 pertains to a cheque dated 30.09.2019 for an amount of Rs.20,00,000/-. Both these cheques have been signed and executed by the Accused/Petitioner herein in favour of the Complainant/Respondent. 4. In both complaints, after the cheques were dishonoured, notices were issued to the Accused calling upon the Accused to pay the amounts under the cheque; 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. Thereafter, the verification of the complaint on affidavit was treated as the Complainant's evidence and the Accused filed an application under Sub-Section 2 of Section 145 of the Negotiable Instruments Act seeking leave to cross examine the Complainant. 5. Perusing of the application would rev....
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....which he would produce in evidence. 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. 9. If the Accused wishes to lead evidence by examining himself, he is required in terms of Clause (a) of the proviso to Sub-Section 1 of Section 315, to record the waiver of his right and to state in writing that he wishes to depose in the matter. The Magistrate has proceeded to allow the Accused to lead evidence without the Accused first, on his own, making a request in writing, in terms of Clause (a) of the proviso to Section 315. This was a stage to be first complied with by the Magistrate, since the Accused cannot otherwise be compelled to act as a witness in his case, but where he wants to examine himself must specifically waive his right and record the same in writing by a request to the Court. 10. Thereafter, the Magistrate has proceeded to direct the Accused to lead his evidence by filing an affi....
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....d 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 subsection (1) of section 145 in view of the immunity conferred on the accused from being compelled to be a witness against himself under Article 20 (3) of the Constitution of India...." Then in paragraph 31 of the judgment it observed: ".... Merely because, section 145(1) does not expressly permit the accused to do so, does not mean that the Magistrate cannot allow the accused to give his evidence on affidavit by applying the same analogy unless there is just and reasonable ground to refuse such permission. There is no express bar on the accused to give evidence on affidavit either in the act or in the Code..... I find no justified reason to refuse permission to the accused to give his evidence on affida....
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....dia and ors., reported in 2014(6) Mh.L.J. (S.C.) 10 = 2014(4) Mh.L.J. (Cri.) (S.C.) 35 MANU/SC/0387/2014: AIR 2014 SC 2528: (2014) 5 SCC 590, while dealing with the issue of large pendency of cases arising under Section 138 of the Negotiable Instruments act, after taking into consideration various decisions in the field and also the ratio in the case of Mandvi Co-op. Bank Ltd. (supra), in para No.21, issued following directions. "21. Many of the directions given by the various High Courts, in our view, are worthy of emulation by the Criminal Courts all over the country dealing with cases under Section 138 of the Negotiable Instruments Act, for which the following directions are being given :- DIRECTIONS:- 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 ....
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....ourt 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 to file an Affidavit-of-Evidence in lieu of Examination-in-Chief." 13. A similar view has been taken by this Court in Viral Enterprises v. State of Maharashtra, 2024 SCC OnLine Bom 1774, in a batch of petitions which deal with the very same issue. This Judgment makes reference to Mandvi Co-op Bank Ltd. (supra) and Indian Banks Association & Ors. v. Union of India reported in (2014) 5 SCC 590 and has held as under: "7. The substance of the petition is that if viewed in the light of the object of insertion of the provisions contained in section 143 to 147 of the NI Act, 1881, by Act, 55 of 2002, the accused also has a right to adduce his evidence on an affidavit. The learned Metropolitan Magistrate was in error in declining to accept such evidence on affidavit by placing reliance on the decision of the Supreme Court in the case of Mandvi Cooperative bank Limited v. Nimesh B. Thakore, (2010) 3 SCC 83, as the subsequent judgment of the Supreme Court in the case of Indian Bank Association v. Union of India,....
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.... have thought it proper to incorporate a word 'accused' with the word 'complainant' in sub-section (1) of section 145 in view of the immunity conferred on the accused from being compelled to be a witness against himself under Article 20(3) of the Constitution of India...." Then in paragraph 31 of the judgment it observed: ".... Merely because, section 145(1) does not expressly permit the accused to do so, does not mean that the Magistrate cannot allow the accused to give his evidence on affidavit by applying the same analogy unless there is just and reasonable ground to refuse such permission. There is no express bar on the accused to give evidence on affidavit either in the Act or in the Code..... I find no justified reason to refuse permission to the accused to give his evidence on affidavit subject to the provisions contained in sections 315 and 316 of the Code." 46] On this issue, we are afraid that the High Court overreached itself and took a course that amounts to taking over the legislative functions. On a bare reading of section 143 it is clear that the legislature provided for the complainant to give his evidence on affidavit and did not provide ....
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....e Supreme Court under Article 32 of the Constitution of India seeking appropriate guidelines, directions to be followed by all the Courts dealing with complaints under section 138 of NI Act, 1881 so as to ensure expeditious disposal of the complaints. In Indian Bank Association (supra), the Supreme Court took note of the decision in the case of Mandvi Cooperative bank (supra) and issued a number of directions. Direction 5, on which Mr. Patel placed very strong reliance, reads as under:- (5) The Court concerned must ensure that examination-in-chief, cross-examination and re-examination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complainant and accused must be available for cross-examination as and when there is direction to this effect by the Court. (emphasis supplied) 26. Two questions come to the fore. First whether Indian Bank Association (supra) has taken a divergent view? Second, even if one proceeds on the premise that there is a deviation from the decision in the case of Mandvi Cooperative bank (sup....
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...., (b) & (c) to Section 138 of the Act are shown to have been complied with, technically the commission of the offence stands completed and it is for the accused to show that no offence could have been committed by him for specific reasons and defences. 28. From a correct reading of the decision in the case of Indian Bank Association (supra), I find it rather difficult to accede to the submission on behalf of the accused that the said decision deviates from the view taken by the Supreme Court in the case of Mandvi Cooperative bank (supra) in the matter of permitting the accused to lead evidence on an affidavit. The question that arose for consideration in the case of Mandvi Cooperative bank (supra) was in the context of the import of amended section 143 and 145 of the NI Act, 1881, in particular. On the contrary, a larger issue of expeditious completion of the trial in the complaints under section 138 of the NI Act, 1881 was the subject matter of the Writ Petition filed by the Indian Bank Association (supra). In that context, the Supreme Court gave certain directions. However, despite noting the decision in the case of Mandvi Cooperative bank (supra), especially the fact th....
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....lty. "decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the Court." decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Co-equal or Larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam. (emphasis supplied)" 14. The Magistrate has, therefore, 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 th....
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....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." I am fully in agreement with the view taken by the Gujarat High Court on this issue, based on the reasons assigned by me above. 16. 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. 17. However, considering that the procedure as was required under Section 315 Cr.P.C. has not been followed, this would be a case that calls for interference in the supervisory jurisdiction of the Court under Article 227 of the Constitution of India to correct the legal error....