IMPORTANT POINT
Accused in Section 138 of N.I. Act case, cannot be permitted to give his evidence by way of affidavit, like complainant, in view of Section 145 of N.I. Act.

ORDER

The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (In short “Cr.P.C.”) is filed by the Petitioner/Accused, seeking to direct the learned Additional Judicial Magistrate of First Class, Srikalahasti, Chittoor District, (In short, “Magistrate Court”) to accept his evidence in the form of chief examination affidavit in C.C.No.315 of 2017.

Factual Background

2. The Respondent No.1 herein filed a complaint in C.C.No.315 of 2017 before the learned Magistrate, against the Petitioner/Accused for the offence under Section 138 of Negotiable Instruments Act, 1881 (In short “the Act”) for dishonour of cheque, alleged to have been issued in discharge of legally enforceable debt. At the stage of examination under Section 313 Cr.P.C., the petitioner/accused filed his chief examination affidavit before the trial Court and the same was not accepted by the learned Magistrate.

3. Thereafter, the petitioner filed Crl.M.P.No.514 of 2020 in C.C.No.315 of 2017 to permit him to file his evidence affidavit under Section 145 of the Act and the same was dismissed by the trial Court. Aggrieved by the said Order of dismissal, the present petition has been filed.

4. Heard Sri Siva Prasad Reddy Venati, learned counsel for the petitioner and Ms.D.Prasanna Lakshmi, learned Assistant Public Prosecutor for the State/Respondent No.2.

5. Learned counsel for the petitioner would submit that since the complaint is under Section 138 of the Act, the evidence of the accused can be filed by way of an affidavit and there is no prejudice caused to the other side in leading his evidence by way of affidavit. Learned counsel would also submit that, subject to the provisions of Section 315 of the Code of Criminal Procedure, the accused can also give his evidence on affidavit.

6. Learned Assistant Public Prosecutor would submit that the petitioner is not entitled to give his chief evidence by way of an affidavit, vide the bar under Section 145 of the Act.

Point for Determination

7. Having heard the contentions raised by the learned counsel, this Court perused the material available on record. The point that arises for determination is;

“Could an accused in Section 138 of N.I. Act case, be permitted to give his evidence by way of an affidavit, like the complainant, in view of Section 145 of N.I. Act?”

Determination by the Court

8. Section 138 of the N.I. Act criminalises the dishonour of cheques, through which the Legislature intends to prevent dishonesty on the part of the drawer of the cheque. Section 138contains the essential ingredients necessary to tap in the offence followed by a proviso that contains three clauses viz., (a), (b), and (c). It is a settled principle of law that the offence under Section 138 is said to have been committed only on the combined fulfilment of the ingredients in main provision and eventualities in the proviso clauses. Section 139 states that the Court must presume unless the contrary is proved that, the holder of the cheque received the cheque for discharging in whole or in part of a debt or liability.

9. The core provision around which contentions surround in this matter i.e., Section 145, reads as follows;

“Section 145. Evidence on affidavit.—

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.”

10. A bare reading of the Section 145(1), makes it clear that the provision entails a complainant to give his evidence on an affidavit. No mention is made with respect to the Accused. The Hon’ble Apex Court in Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore, (2010) 3 SCC 83, made a holistic a