Evidence submitted by affidavit by an accused in a NI case is impermissible, reinforcing the need for oral evidence as per existing legal principles.

JUDGMENT :

ANJAN MONI KALITA, J.

Heard Mr. S. Ahmed, learned counsel appearing for the petitioner. Also heard Mr. S. Nawaz, learned counsel appearing for the respondent.

2. The instant application has been filed, under Section 438/440 of BNSS, 2023, filed assailing the Judgment & Order dated 17.01.2025, passed by the learned Addl. Sessions Judge No. 2, Nagaon in Criminal Revision No. 26/2024 in connection with N.I. Case No. 21/2019, under Section 138 of the Negotiable Instruments Act, 1881, whereby the revision petition was found devoid of merit and accordingly, dismissed on contest.

3. The learned counsel for the respondent has taken a preliminary objection in filing of the instant application, stating that this petition has been filed under the guise of Section 528 of BNSS, 2023, though actually the application is in the nature of second criminal revision petition, which is not permissible under the law.

4. Responding to the aforesaid submission, the learned counsel appearing for the petitioner submits that there is a palpable error in the Judgment & Order dated 17.01.2025, passed by the learned Addl. Sessions Judge No. 2, Nagaon, Assam and therefore, the instant petition is maintainable under the law.

5. In support of his argument, he has referred to the case of Rajani Goswami Vs. Anil Chandra Haloi , reported in 2009 0 Supreme (Gau) 555 . In the aforesaid case, this Court had relied on the ratio laid down in the case of Krishnan and Another Vs. Krishnaveni and Another , reported in (1997) 4 SCC 24, which held that though, it is clear that second criminal revision petition by the same petitioner, is barred by Section 397(3) of the Cr.P.C., but the same petitioner is not barred from approaching the High Court for correcting palpable errors committed by the Court below in passing the orders and thereby, resulting in grave injustice to the petitioner, by invoking supervisory and plenary jurisdiction of the High Court under Section 482 read with Section 483 and 401 of Cr.P.C., over the proceedings and the order of the subordinate Court.

6. In view of the aforesaid ratio laid down by the Hon’ble Supreme Court, which was followed by this Court in the aforesaid case of Rajani Goswami (supra), this Court is of the opinion that the instant petition can be entertained by this Court, if there are allegations of palpable errors committed by the Court below which can be corrected by this Court.

7. As far as the instant case is concerned, the case of the petitioner is that the respondent no. 1 had filed a case under NI Act against the petitioner wherein, the Trial Court had taken cognizance under Section 138 of NI Act and thereafter, issued summon to the petitioner for appearance. On receipt of the said summon, the petitioner appeared before the Trial Court and accordingly, the trial proceeded. That on 29.04.2023, the petitioner submitted evidence (Examination-in-chief) of DW-1 in the form of affidavit and the copy of the same was furnished to the complainant i.e., the respondent no. 1 and accordingly, fixed for further DWs. It is also the case of the petitioner that again on 27.06.2023, the accused submitted evidence of DW-2 in the form of affidavit and the copy of the same was also furnished to the respondent no. 1. However, on 08.01.2024, when the matter was fixed for cross-examination of the DWs, the complainant rather than cross- examining the DWs, raised objection and submitted that in a NI case, evidence of DWs could be recorded only orally and evidence by way of affidavit is not permissible under the law. Therefore, the learned counsel appearing for the complainant had prayed for issuance of d