The court established that under Section 145 of the Negotiable Instruments Act, only complainants can provide evidence via affidavit, not the accused.

ORDER

1. Instant misc. petition has been filed against the order dated 10.01.2023 passed by learned Additional Sessions Judge No.2, Jodhpur Metropolitan whereby the learned Judge dismissed the revision petition and affirmed the order dated 14.07.2022 passed by learned Metropolitan Magistrate (N.I. Act) Cases No.7, Jodhpur Metropolitan by which the application filed by the petitioner under Section 315 Cr.P.C. read with Section 145(2) of N.I. Act has been dismissed.

2. Brief facts of the case are that the complainant filed a complaint before the Metropolitan Magistrate under Section 138 of N.I. Act with regard to dishonouring of Cheque No. 000234 dated 21.09.2016 darawn on DCB Bank, Branch Jodhpur for a sum of Rs. 5,00,000/-. During the trial, the respondent no.1 Rahul Jain examined himself in evidence and documents were also filed. After examination of complainant, the petitioner accused filed an application under Section 315 Cr.P.C read with Section 145(2) of N.I. Act stating therein that in his defence, he wants to give his evidence on affidavit.

3. After considering the arguments of both the parties, the learned Metropolitan Magistrate dismissed the application filed by the petitioner vide order dated 14.07.2022. The petitioner filed a revision petition against the said order before the learned Additional Sessions Judge No.2, Jodhpur Metropolitan which too was dismissed vide order dated 10.01.2023.

4. Counsel for the petitioner submits that the petitioner had 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 dismissed, which as per learned counsel for the petitioner, was wholly illegal. Learned counsel for the petitioner placed reliance on the ratio as laid down by the Hon'ble Apex Court in the judgment of Indian Bank Association & Ors. v. Union of India reported in (2014) 5 SCC 590 and judgment of Hon'ble Apex Court in the case of Mandvi Cooperative Bank Ltd Vs. Nimesh B. Thakore reported in (2010) 3 SCC 83.

5. Learned Public Prosecutor and counsel for the respondent supported the impugned orders and submitted that both the courts below have discussed each and every aspect of the matter and have rightly rejected the application and revision petition respectively, which does not called for any interference. It is argued that the Court had already permitted the petitioner to appear as defence witness but the petitioner by insisting to submit submit the affidavit in the first instance, only wants to delay the matter. Learned counsel for the respondent also drew the attention of this Court to the judgment rendered by the Hon'ble High Court of Gujarat in the case of Soni Anilkumar Prahladbhai vs. State of Gujarat (R/Special Criminal Application No. 4888 of 2022, decided by the Hon'ble Gujarat High Court at Ahmedabad on 06.06.2022).

6. Heard the learned counsel for the parties and perused the orders impugned so also the record.

7. In the first instance, it is relevant to quote Section 145 of Negotiable Instruments Act :-

"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."

8. Sub-Section (1) of Section 145 of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 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. Thus, a new procedure has been provided under this provision enabling the complainant to give his ev