The right available to a complainant to adduce evidence by affidavit in lieu of chief examination is not available to an accused as per section 145(1) of the Negotiable Instruments Act.

Alexander Thomas, J.

The original petition has been filed by the petitioner by virtue of the enabling powers conferred under Article 227 of the Constitution of India, with prayer to set aside the impugned Ext. P-2 order passed by the Trial Court. The petitioner herein is the complainant in CC No. 864 of 2015 on the files of the Judicial First Class Magistrate Court, Njarakkal, alleging offence punishable under section 138 of the Negotiable Instruments Act, 1881, against the 2nd respondent herein (accused). It is stated that the complainant was examined as P.W.-1 and had got marked as Exts. P-1 to P-4 documents therein. Thereafter, the accused was subjected to section 313, Cr. P.C. questioning process. Later, when the opportunity for adducing defence evidence had come up, the 2nd respondent (accused) had filed Ext. P-1 proof affidavit in lieu of chief examination of the accused as D.W.-1 and this was objected to by the counsel for the petitioner. However, the learned Magistrate has accepted Ext. P-1 proof affidavit in the file of the case and has posted the case for cross-examination of D.W.-1 (accused) by the complainant. The learned Magistrate has overruled the objection of the petitioner's Counsel and has passed Ext. P-2 to that extent. The petitioner seeks to challenge the permission granted by the learned Magistrate for accepting the proof affidavit of D.W.-1 (accused) in lieu of the chief-examination D.W.-1 (accused), in view of the provisions contained in section 145 of the Negotiable Instruments Act.

2. It is contended by the petitioner that the provisions contained in section 145 of the Negotiable Instruments Act do not enable the accused to give evidence on affidavit and that section 145(1) only enables the complainant to adduce evidence on affidavit and the word "accused", is conspicuously and intentionally omitted from the scope and ambit of section 145(1). Therefore, it is contended that sections 145(2) of the Negotiable Instruments Act only enables either the prosecution or the accused to file application for the purpose of examining any person who comes within the ambit of section 145(1), who is giving evidence on affidavit. That the intention of the Legislature, was to enable the accused also to give the evidence on affidavit, then there would have been clear wordings to that effect in section 145, enabling the accused also the same benefit and in the absence of such explicit terms, as has been extended to the complainant, such a right cannot be exercised by the accused to tender affidavit in lieu of chief-examination of witnesses of the defence/accused. The petitioner also places reliance on the judgment of Madras High Court in Thanaiya v. Balasamy Nadar, 2005 (2) KLT 643 : 2005 KHC 699.

3. Heard Sri T.N. Suresh, learned Counsel appearing for the petitioner (complainant), Sri Denizen Komath, learned Counsel appearing for the 2nd respondent (accused) and Sri Jestin Mathew learned Public Prosecutor, appearing for the 1st respondent-State.

4. The matter in issue in this regard is longer res integra and is fully covered in favour of the petitioner by virtue of the ratio decidendi laid down by the Apex Court in the judgment in Mandvi Co-operative Bank Ltd. v. Nimesh B. Thakore, (2010) 3 SCC 83.

5. Section 145 of the Negotiable Instruments Act provides as follows :

"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."

The Apex Court, in the decision in Mandvi Go-operative Bank Ltd.'s case (supra), has held that the claim of the accused that on being summoned under secti