IMPORTANT POINT
If the evidence of the witnesses could be by way of affidavit in terms of Section 145 NI Act, the evidence of the accused could also be way of affidavit.

J.B. Pardiwala, J.—By this application under Article 227 of the Constitution of India, the applicant – original accused calls in question the legality and validity of the order passed by the 3rd Additional Civil Judge, Himmatnagar, dated 27th March 2018 below application Exh.128 in the Criminal Case No.3145 of 2014.

2. It appears from the materials on record that the respondent no.2 herein – original complainant filed a private complaint in the Court of the Chief Judicial Magistrate, Himmatnagar, against the applicant herein for the offence punishable under Section 138 of the Negotiable Instruments Act. The complaint has been registered as the Criminal Case No.3145 of 2014 and the same is pending as on date in the Court of the Chief Judicial Magistrate, Himmatnagar. The applicant – original accused preferred an application Exh.128, which reads as under:—

“(1) The present matter is at the stage of evidence of the accused.

(2) The court has refused to accept the evidence of the accused on oath, therefore, it is necessary to file the present application.

(3) This application is preferred relying upon the judgment dated 21.04.2013 delivered in the case of Banking Association V/s. Union of India, whereby all the courts of the country are directed to follow the instructions contained therein.

“The Apex Court appreciating the efforts of Bombay and Kolkata High Courts for speedy disposal of 138 cases, finally laid down the following procedure to be observed by all criminal courts in the country for speedy and expeditious disposal of 138 cases. The essence of these procedures can be summarized as follows:

“The Apex Court of the country has given directions to make speedy disposal of the complaints of Section-138 of the Negotiable Instrument Act. The said directions are mentioned at last in the judgment annexed herewith. I request the Ld. Court to go through the same. It is mentioned in the Para-5 that “Ld. Courts should accept the evidences of the witness on oath instead of recording it orally. Ld. Court can direct the witnesses of the complainant and accused to remain present for cross - examination as and when the Ld. Court calls for.”“

(4) The Hon’ble Supreme Court has passed this judgment after considering the decision in the case of Mandavi Cooperative Bank Ltd. v/s. Nimesh Thakore and, therefore, the directions given in this judgment should be followed by all the courts of the country.

(5) Before disposing of the present application, the court should take into consideration that, “not only the courts should follow the laws, but they should also follow the directions given by the Hon’ble Apex Court.”

In the aforesaid circumstances, by submitting this application we, the accused, as well as our witnesses, propose to give our evidence on affidavit by way of examination-in-chief. Therefore, an appropriate order be passed for giving evidence of the accused as well as of the witnesses of the accused on affidavit by way of examination-in-chief.”

3. The court below adjudicated the application Exh.128 and rejected the same by placing strong reliance on the decision of the Supreme Court in the case of M/s. Mandvi Cooperative Bank Limited v. Nimesh B.Thakore, (2010)3 SCC 83: (2010) 1 Supreme 360.

4. Being dissatisfied with the order passed by the trial court below application Exh.128, the applicant – original accused is here before this Court with this application.

5. Mr. Thakur, the learned counsel appearing for the applicant, vehemently submitted that the trial court committed a serious error in passing the impugned order. According to the learned counsel, the decision of the Supreme Court in the case of M/s.Mandvi Cooperative Bank Limited (supra) is directly in conflict with the later decision of the Supreme Court in the case of Indian Bank Association and Others v. Union of India and Others, reported in (2014)5 SCC 590. He would submit that in view of the recent pronouncement of the Supreme Court in the cas