The central legal point established in the judgment is the admissibility of the accused's evidence on affidavit in a Section 138 proceeding under the Negotiable Instruments Act, 1881, and the nature of such proceedings as a civil wrong with criminal overtones.

JUDGMENT :

1. This Criminal Misc. Petitions under Section 482 Cr.P.C. have been preferred claiming the following reliefs :

In S.B. Criminal Misc(Pet.) No. 6142/2021:-

“It is, therefore, respectfully prayed that the instant misc. petition be kindly allowed this Hon’ble Court may be pleased to set aside the order dated 18.09.2021 passed by Special Judicial Magistrate (NI Act Cases) No. 3, Bhilwara in Case No. 4878/2017 and the trial court be directed to take the statement affidavit of the petitioner on record and treat the same as the statement of the petitioner.

Any other appropriate write, order or direction which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case may also be granted in favour of the Petitioner, during the pendency of the present petition in the Hon’ble Court.”

In S.B. Criminal Misc(Pet.) No. 1204/2021:-

“It is, therefore, respectfully prayed that the instant misc. petition be kindly allowed this Hon’ble Court may be pleased to set aside the order dated 29.1.2021 passed by Special Judicial Magistrate (NI Act Cases) No. 3, Bhilwara in Case No. 4878/2017 and the trial court be directed to summon witness no. 1 and 2 in the list of witnesses produced by the petitioner.

Any other appropriate writ, order or direction which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case may also be granted in favour of the Petitioner, during the pendency of the present petition in this Hon’ble Court.”

2. Brief facts of the case as placed before this Court by learned counsel for the petitioner are that the respondent no.2 lodged a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the petitioner for dishonor of a cheque issued by him in the year 2016. And that, the charges for the said offences were framed against the accused-petitioner and the trial accordingly begun.

3. Learned counsel for the petitioner submitted that thereupon the respondent no. 2 produced himself as a prosecution witness and thereafter none of the prosecution witnesses were called for, and the prosecution evidence was closed; thereafter, the petitioner filed an application along with the list of the prosecution witnesses, and prayed before the learned Court below to permit him to submit his statement as a witness, on affidavit, as under Section 145 (1) of the Act of 1881, which came to be summarily dismissed vide the impugned order, dated 18.09.2021, which as per learned counsel for the petitioner, was a non-speaking order.

4. Learned counsel for the petitioner further submitted that the a bare perusal of the impugned order would reveal that the learned Court below has erred in applying the ratio as laid down by the Hon’ble Apex Court in the judgment of Indian Bank Association & Ors. v. Union of India (2014) 5 SCC 590 wherein as per the learned counsel, it was categorically held that while considering the earlier law that there is no bar on the accused for submitting evidence on affidavit but only reasons recorded in writing.

5. Learned counsel also drew the attention of this Court to the judgment rendered by the Hon’ble High Court of Gujarat in the case of Rakeshbhai Maganbhai Barot vs. State of Gujarat (R/Special Criminal Application No.3367 of 2018, decided by the Hon’ble Gujarat High Court at Ahmedabad on 29.01.2019).

6. Learned counsel for the petitioner further submitted that the examination of the prosecution witnesses in the trial before the learned Court, is essential for the proper adjudication and conclusion of the trial. Furthermore, the testimony of witnesses no. 1 and 2 in the list so submitted was crucial, since a bare perusal of the reply to the notice sent by the respondent no. 2 would reveal that the petitioner had given the details of the vehicles, in relation to which there was an oral agreement between the parties, and the cheque book of the account in question to the respondent no. 2, and therefore, the said question could only be adjudicated upon, a