An accused is not competent to tender his evidence through affidavit under Section 145(2) of the Negotiable Instruments Act.

JUDGMENT

Surinder Gupta. J. - A short question, which arises in this petition, is as to whether accused while appearing as witness in defence can be allowed to lead his evidence on affidavit?

2. Learned trial Court declined the request of petitioner (accused) while relying on observations in case of Mandvi Cooperative Bank Limited vs. Nimesh B. Thakore. (2010) 3 SCC 83 .

3. Learned counsel for the petitioner has argued that in case of Indian Bank Association and others vs. Union of India and others, (2014) 5 SCC 590 , it has been observed that the Court in the complaint case under the provisions of Negotiable Instruments Act may allow the accused to give his evidence on affidavit unless there is a just and reasonable ground to refuse such permission. Statement of accused, in this case, is based on lot of documentary evidence, which cannot be deposed in oral statement, as such, allowing of permission to accused to give his evidence on affidavit will not cause any prejudice to complainant and order of trial Court relying on observations in case of Mandvi Cooperative Bank Ltd (supra) is not sustainable.

4. The Apex Court in case of Mandvi Cooperative Bank Ltd. (supra) took up and decided the issue as to whether the accused can be allowed to give evidence on affidavit as per provisions of Section 145 (2) of the Negotiable Instruments Act and observed as follows:-

"44. Coming now to the last question with regard to the right of the accused to give his evidence, like the complainant, on affidavit, the High Court has held that subject to the provisions of sections 315 and 316 of the Code of Criminal Procedure the accused can also give his evidence on affidavit. The High Court was fully conscious that section 145(1) does not provide for the accused to give his evidence, like the complainant, on affidavit. But the High Court argued that there was no express bar in law against the accused giving his evidence on affidavit and more importantly providing a similar right to the accused would be in furtherance of the legislative intent to make the trial process swifter.

45. In paragraph 29 of the judgment, the High Court observed as follows:

"It is true that section 145(1) confers a right on the complainant to give evidence on affidavit. It does not speak of similar right being conferred on the accused. The Legislature in their wisdom may not have thought it proper to incorporate a word 'accused' with the word 'complainant' in subsection (1) of section 145 in view of the immunity conferred on the accused from being compelled to be a witness against himself under Article 20(3) of the Constitution of India...."Then in paragraph 31 of the judgment it observed:

".... Merely because, section 145(1) does not expressly permit the accused to do so, does not mean that the Magistrate cannot allow the accused to give his evidence on affidavit by applying the same analogy unless there is just and reasonable ground to refuse such permission. There is no express bar on the accused to give evidence on affidavit either in the Act or in the Code.....I find no justified reason to refuse permission to the accused to give his evidence on affidavit subject to the provisions contained in sections 315 and 316 of the Code."

46. On this issue, we are afraid that the High Court overreached itself and took a course that amounts to taking-over the legislative functions.

32. On a bare reading of section 143 it is clear that the legislature provided for the complainant to give his evidence on affidavit and did not provide for the accused to similarly do so. But the High Court thought that not mentioning the accused along with the complainant in sub-section (1) of section 145 was merely an omission by the legislature that it could fill up without difficulty. Even though the legislature in their wisdom did not deem it proper to incorporate the word 'accused' with the word 'complainant' in section 145(1), it did not mean that the Magistrate could not allow the accused to giv