The court clarified that while complainants may submit evidence via affidavit under the N.I Act, accused must provide oral testimony, emphasizing the necessity of in-person examination.

ORAL COMMON ORDER :

J.M.KHAZI, J.

In all these petitions, petitioner is complainant and respondent is accused in a series of complainants filed for the offence punishable under Section 138 of Negotiable Instruments Act ('N.I Act' for short). In these petitions filed under Section 482 of Cr.P.C, the complainant has challenged the separate orders dated 03.12.2022 passed by the trial Court allowing application filed by accused under Section 145 (2) of N.I Act, seeking permission to file affidavit in lieu of his oral evidence.

2. In support of the petition, the complainant has contended that he has filed separate complaints against the accused alleging that accused approached the complainant through his son-in-law Sathiyamurthy and borrowed hand loan of various sums as detailed in the complaints. On the due dates, when the post dated cheques which were issued towards repayment, were presented for encashment, they were dishonoured for want of sufficient funds. After issuing notice and on the failure of accused to comply with the same, complaints are filed.

3. Accused entered appearance and contested the case by pleading not guilty.

4. Already complainant has led evidence.

5. After recording the statement of accused under Section 313 of Cr.P.C, when the case was posted for defence evidence, accused filed application under Section 145 (2) of N.I Act to permit him to file affidavit in lieu of giving oral evidence as examination-in-chief. Despite complainant filed objections and relied upon the decision of Hon'ble Supreme Court in Mandvi Co-operative Society's case, the trial Court has allowed the said applications and granted permission to the accused to lead examination-in- chief by way of affidavit, which is being challenged in the present petitions.

6. In support of his arguments, learned counsel for complainant has relied upon the following decisions:

(i) Rajni Dhingra Vs Sanjeev Chugh, (Rajni Dhingra), CRM-M-41179/2019 dated 05.11.2019

(ii) Geemol Joseph Vs Kousthabhan and another (Geemol Joseph), Crl.A.No.2535/2008 dated 29.07.2019

(iii) MRs.Zaheda Inamdhar Vs Dr.Fatima Hassina Sayeedha (Zaheda Inamdhar), WP No.3519/2024 dated 19.07.2024

7. After due service of notice, accused has appeared through counsel.

8. Heard arguments and perused the record.

9. Thus, complainant is prosecuting the accused for the offence punishable under Section 138 of N.I Act. Section 145 of the N.I Act was amended as per Amendment dated 16.08.2018, according to sub-Section (1) of which the complainant is permitted to give evidence on affidavit and such affidavit may be read as evidence in any enquiry, trial or other proceedings under the Code of Criminal Procedure.

10. Sub-Section (2) of Section 145 provides that on the application of the prosecution or the accused, the Court may summon and examine any person giving evidence on affidavit as to the facts contained therein.

11. In other words when evidence is led by the complainant of himself and his witnesses by way of affidavit, he is at liberty to request the trial Court to summon those witnesses for their further examination-in- chief and also the accused may request the trial Court to tender the complainant as well as his witnesses for their cross-examination.

12. However, no similar provision is made in the N.I Act permitting accused to lead examination-in-chief evidence of himself and his witnesses by way of affidavit. Necessarily, the accused and his witnesses are required to give evidence by stepping into the witness box. This situation is clarified by the Hon'ble Supreme Court in M/s Mandvi Co-operative Bank Ltd. Vs. Nimesh B. Thakore (Mandvi), AIR 201