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MANOJ KUMAR GARG
Rajeshwar Dayal Pareek – Appellant
Versus
Alankar Marble And Grenite – Respondent
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 petition
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.
The accused is not entitled to provide evidence via affidavit under the Negotiable Instruments Act; such a right is exclusively reserved for the complainant to ensure a fair trial.
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.
Advocates appeared :For the Appellant : Yashpal Thakur, Mukund Pandya For the Respondent : Amit Palkar, Mukesh Modi
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 ....
In proceedings under the Negotiable Instruments Act, the accused cannot provide evidence via affidavit and must request in writing to testify, adhering to strict procedural compliance.
The right to provide evidence via affidavit under section 145 of the Negotiable Instruments Act, 1881 is exclusively granted to the complainant, and the accused does not possess this right.
Accused facing trial in a complaint under the provisions of the Negotiable Instruments Act are not competent to tender their evidence through affidavit.
Section 145(2) of Act, clearly reveals that Court on receipt of application of prosecution or accused has no option but to summon and examine any person giving evidence on affidavit as to facts conta....
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