Accused facing trial in a complaint under the provisions of the Negotiable Instruments Act are not competent to tender their evidence through affidavit.

ORDER : – As common issue is involved in both these petitions, therefore, they are being disposed of by this common order.

2. These petitions under section 482 of the Code of Criminal Procedure have been filed by the petitioners for setting aside order dated 4-1-2020 passed by Judicial Magistrate First Class, Katni in Cheque bouncing case Nos. 168/17 and 144/17 respectively, whereby the trial Court has rejected the examination-in-chief of accused submitted by way of affidavit under section 145 of the Negotiable Instruments Act, at the stage of defence evidence. Being dissatisfied with the aforesaid orders, the petitioners have preferred these petitions under section 482 of the Criminal Procedure Code, 1973.

2-A. Facts giving rise to these petitions, in shorts, are that the petitioners being accused are facing trial before the Judicial Magistrate First Class, Katni in cheque bouncing case Nos. 168/17 and 144/17 respectively. Presently, the case is fixed before the trial Court for recording the defence evidence and the petitioners had submitted their examination-in-chief in the form of affidavits, which were filed under section 145 of the Negotiable Instruments Act on 29-11-2019 along with the applications for taking the evidence of the accused in the form of affidavits. The trial Court vide order dated 4-1-2020 rejected the applications as well as the affidavits filed by the accused.

3. The petitioners have filed these petitions for setting aside of the aforesaid order on the ground that the trial Court has committed an error of law by relying upon the judgment of Hon’ble Apex Court in the case of Mandvi Co-operative Bank Ltd. vs. Nimesh B. Thakore, (2010) 3 SCC 83 and has failed to take note of directions issued by the Hon’ble Apex Court in subsequent case of Indian Bank Association and ors. vs. Union of India and ors., (2014) 5 SCC 590 and also Rakesh Bhai Magan Bhai Banot vs. State of Gujarat, 2019(1) Crimes 575; wherein Gujarat High Court has dealt with both the cases cited above and has precisely dealt with the question, whether the trial Court was justified in refusing to take the evidence of accused on oath and has answered the question in affirmative by directing the trial Court to receive the evidence of the petitioner on affidavit. In support of his contentions, learned counsel for the petitioners has placed reliance on a decision of Hon’ble the Apex Court passed in the case of Indian Bank Association and ors. vs. Union of India and ors., (2014) 5 SCC 590. Under these circumstances, learned counsel for the petitioners prays for setting aside of the impugned order and for direction of the trial Court to take the affidavits filed by the accused persons in lieu of their examination-in-chief in the interest of justice.

4. On the other hand, learned counsel for the respondents refuting the aforesaid contentions submitted that trial Court has rightly rejected the applications filed by the petitioners relying upon the case of Mandvi Co-operative Bank Ltd. vs. Nimesh B. Thakore, 2010(3) SCC 83. In support of his contention, he has placed reliance upon a decision of Punjab and Haryana High Court passed in the case of Rajni Dhingra vs. Sanjeev Singh, (2019) 4 Civ.CC 817 and also a Full Bench Decision of Madhya Pradesh High Court passed in the case of Jabalpur Bus Operators Association and ors. vs. State of M. P. and another, in W. P. No. 177 and 1629 of 2001 decided on 17-12-2002 and prayed that both the petitions be dismissed.

5. Having considered the contentions of learned counsel for both the rival parties and on minute perusal of the citations given by both the parties, this Court finds much force on the contentions advanced by learned counsel for the respondents. In the case of Rajni Dhingra (supra), the issue involved in the matter has been dealt with and after taking note of Indian Bank Association (supra) and also Mandvi Co-operative Bank Ltd. (supra) held that the petitioner being an accused, who is facing trial in com