The accused is not entitled to provide evidence via affidavit under the Negotiable Instruments Act; such a right is exclusively reserved for the complainant to ensure a fair trial.

ORDER :

(M. Nagaprasanna, J.) :

The petitioner is before this Court calling in question proceedings of recording of evidence of the accused by way of an affidavit in C.C.No.27337 of 2027 pending before the 22nd Additional Chief Metropolitan Magistrate, Bengalore arising out of a complaint filed under Section 200 of the Cr.P.C., alleging offences punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘the Act’ for short) and has sought quashment of the order dated 13-12-2023 which rejects Section 311 Cr.P.C. application filed by the petitioner seeking further cross-examination of the respondent/accused.

2. Heard Sri P.P. Hegde, learned senior counsel appearing for the petitioner and Sri M.N.Umesh, learned counsel appearing for the respondent.

3. Facts, in brief, germane are as follows:-

The petitioner and the respondent have a transaction. The transaction leads to issuance of a cheque by the accused in favour of the complainant. The presentation of the cheque leads to it getting dishonored. The dishonouring of the cheque leads the complainant before the concerned Court invoking Section 200 of the Cr.P.C., by registering a complaint. Presently, the proceedings are pending before the concerned Court in C.C.No.27337 of 2017. The issue in the lis does not pertain to the merit of the claim of the complainant or the defence of the accused. On 16-11-2018, the petitioner was cross-examined by the counsel for the accused. This again happens on 18-02-2019. On 25-03-2019 the accused files an affidavit. On the affidavit, further cross-examination of DW- 1/accused was taken up and recorded as nil owing to the absence of the complainant. The complainant then prefers an application under Section 311 of the Cr.P.C., seeking further cross-examination of DW-1. The accused files objections. An order comes to be passed rejecting the application filed under Section 311 of the Cr.P.C. It is this order that has driven the petitioner to this Court in the subject petition.

4. The learned senior counsel Sri P P Hegde appearing for the petitioner would submit that what is called in question is the proceedings that entertained filing of affidavit by the accused in lieu of her presence for examination-in-chief. The learned senior counsel would contend that the accused sitting in Dubai files the affidavit in lieu of examination-in-chief and the Court accepts it. While an application is filed seeking further cross-examination under Section 311 of the Cr.P.C., by the petitioner, it is rejected, which is contrary to law. He would seek quashment of the aforesaid action and not to permit the accused to continue the trial on the strength of the affidavit that is filed as examination-in-chief. It is his submission that it runs completely counter to plethora of judgments rendered by the Apex Court, co-ordinate Bench of this Court and several other High Courts.

5. Per contra, the learned counsel appearing for the respondent would vehemently refute the submissions contending that there is no illegality in the learned Magistrate taking the affidavit in lieu of examination-in-chief of the accused as there is no bar in law for such action. He would also place reliance on certain judgments to buttress his submissions. Insofar as the application under Section 311 of the Cr.P.C., is concerned, the learned counsel would submit that the accused was offered for cross-examination on 28-06-2023. The complainant did not choose to cross-examine her. Therefore, it was taken as nil and would submit that there is no warrant to recall the defence witness No.1 for further cross- examination. He would