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.

JUDGMENT

A.S. Gadkari, J. - Rule.

Rule made returnable forthwith and by consent of learned counsel for the respective parties, Petition is taken up for final hearing.

2. By the present Petition under Article 227 of the Constitution of India, the petitioner, original complainant, 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 of summons, the respondent Nos.2 and 4 appeared before the Court. The respondent No.4 (accused No.3) filed an Affidavit of Evidence in lieu of Examination-in-Chief dated 5th March 2019. To the said affidavit accused also annexed certain documents. The petitioner therefore filed an application on 1st April 2019 for discarding evidence of accused and for directing the respondent No.3 to lead oral evidence. The Trial Court by its cryptic impugned Order dated 1st April 2019, rejected it. The impugned Order reads as 'Rejected as per latest Judgment of Gujrat H.C. and of Hon'ble S.C. in I.B.A. Case'. The Trial Court also directed and granted 7 days time to the petitioner to challenge its Order or else it would pass no cross Order.

5. The question, whether an accused in proceedings under Section 138 of the N.I. Act is entitled to file an Affidavit in-lieu of Examination-in-Chief or not, is no more res-integra.

The Hon'ble Supreme Court in the case of Mandvi Co-op. Bank Ltd. Vs. Nimesh B. Thakore, (2010) AIR SC 1402 Manu/SC/0016/2010 : (2010) 3 SCC 83, in para Nos.30, 31 and 32 has held as under :

"30. Coming now to the last question with regard to the right of the accused to give his evidence, like the complainant, on affidavit, the High Court has held that subject to the provisions of sections 315 and 316 of the Code of Criminal Procedure the accused can also give his evidence on affidavit. The High Court was fully conscious that section 145(1) does not provide 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 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."

31. On this issue,