Oral Judgment: (P.B. Majmudar, J.)

1. Since the common law points are involved in all these petitions, all these petitions are taken up for hearing together. The petitioners in each of these petitions are facing trial under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N.I. Act’).

2. So far as Criminal Writ Petition No. 3152 of 2009 is concerned, a Division Bench of this Court by its order dated 2nd December, 2009 directed the Registry to club this petition along with Writ Petition Nos. 1544 of 2009 and 1545 of 2009, as the point involved in the said petition is the same and that is how all these writ petitions are placed for hearing together. On behalf of the petitioners it is submitted that the provisions of Section 145 of the N.I. Act are ultra vires the provisions of Article 21 of the Constitution of India and the said Section is required to be struck down.

3. As pointed out earlier, the petitioners are facing trial under section 138 of the N.I. Act.

According to the petitioners, at the time of trial, in lieu of the examination in chief, the original complainants have tendered their affidavits which contain various leading questions. The petitioners, who are the accused, therefore, objected the same before the concerned Magistrate. So far as Writ Petition No. 1544 is concerned, on behalf of the accused an application was preferred for making a reference under section 395 of the Code of Criminal Procedure, 1973 read with section 142 of the Indian Evidence Act, 1872(hereinafter referred to as the “Evidence Act”). The learned Magistrate by an order dated 17th February, 2009 came to the conclusion that no legal question arises as to the validity of any Act which is necessary to dispose the case to make reference to the High Court. A revision was preferred against the said order before the District Court at Thane bearing Criminal Revision Petition No. 39 of 2009. The same was also dismissed on 6th May, 2009 against which above Writ Petition No. 1544 of 2009 is filed.

5. Mr. Pradhan, learned counsel appearing for the petitioners in Writ Petition Nos. 1544 and 1545 of 2009, submitted that as per Section 142 of the Evidence Act, leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a reexamination, except with the permission of the Court. Mr. Pradhan submitted that in the affidavit submitted in lieu of examination-in-chief by the complainant, leading questions are finding place in such affidavit. It is submitted by Mr. Pradhan that by permitting the complainant to tender his affidavit, it may prejudice the case of the accused as, though the accused can object to putting leading questions in the examination-in-chief in ordinary criminal trial, he has no such right to object, if affidavit in lieu of examination-in-chief is tendered under Section 145 (1) of the N.I. Act. It is submitted by Mr. Pradhan that in view of the same, Section 145 of the N.I. Act is ultra vires the provisions of Article 21 of the Constitution of India as it denies the accused an opportunity of a fair trial. The said provision is also violative of Section 141 of the Evidence Act. He submitted that under the N.I. Act also the accused is entitled to have a fair trial and the provisions of the Evidence Act is also applicable to such trial. It is submitted by Mr. Pradhan that even if a person is tried under the N.I. Act, nonetheless he is an accused and is required to be treated at par with other accused who might be facing trial under different enactments. Mr. Pradhan submitted that no affidavit in lieu of examination-in-chief should be permitted and, therefore, Section 145 of the N.I. Act should be struck down. According to Mr. Pradhan, if a person is permitted to put leading questions in the affidavit, it will prejudice the case of the accused and it will be contrary to the provisions of Section 142 of the Evidence Act.

6. Mr. Pradhan in this behalf relied