Affidavit evidence in chief is only permissible for the complainant under Section 145 of the Negotiable Instruments Act; it does not extend to the accused.

JUDGMENT

The complainant in S.T.No.501 of 2005 of the Judicial First Class Magistrate-III, Thrissur aggrieved by the acquittal of the accused in a complaint under section 138 of the Negotiable Instruments Act has preferred this appeal.

2. The complainant alleged that the accused was known to him for the past several years and that he had borrowed a sum of Rs.4,35,000/- on 15.07.2003. Towards the discharge of that legally enforceable debt, a cheque dated 22.11.2004 was issued to him. The cheque on presentation was returned dishonoured. A statutory notice was issued, which was replied. Alleging that, by non payment of the money covered by the cheque, accused has committed an offence punishable under section 138 of the Negotiable Instruments Act , complainant approached the court below by filing the criminal complaint. Accused appeared and contested the proceedings. On the side of the complainant, PW1 was examined and Exts.P1 to P13 were marked. Accused got himself examined as DW1 and Ext.D1 to D9 were marked. The court below, on an evaluation of the rival materials concluded that, PW1 failed to establish that the accused had committed the offence punishable under section 138 of the . It was held that, there was no reliable evidence to prove that the accused had borrowed the amount from the complainant and issued a cheque towards the discharge of that liability. Accordingly, accused was found not guilty and acquitted. This judgment is under challenge in the present proceedings.

3. Heard the learned counsel for the appellant and learned counsel for the contesting second respondent.

4. Learned counsel for the appellant challenged the various findings of the court below on merits. It was contended that, court below failed to appreciate the facts and evidence in its correct perspective and arrived at a conclusion, essentially based on surmises. A specific contention was raised by the appellant that the recording of evidence on the side of the accused was contrary to the statutory provision and that the finding of court below was liable to be interfered on that ground alone. Since that contention was found to be a crucial contention and a finding on that was sufficient for the disposal of the appeal, other issues on merits are not being considered.

5. Records revealed that the complainant was examined as PW1 and in lieu of his examination in chief, proof affidavit was filed. He was cross examined by the counsel for the accused touching on the oral evidence tendered by him in the affidavit. Thereafter, on the side of the accused, affidavit in chief was filed, which was accepted by the court below and the accused was cross examined by the counsel for the complainant.

6. The contention set up by the appellant was that, the examination of the accused by filing an affidavit in lieu of the chief examination was illegal and was not authorized by the statute. It was contended that, section 145 of the Negotiable Instruments Act permitted the complainant and his witnesses to be examined in chief by filing the proof affidavits. This was not statutorily extented to an accused, it was contended. Consequently, acceptance of the evidence of the accused in chief examination by accepting of the proof affidavit was illegal and hence, evidence so tendered by the accused was liable to be eschewed, it was contended. It was further contended that, in the light of the above evidence, the only material before the court below was the evidence tendered by the complainant through the examination of PW1. Since there was no rebuttal of the statutory presumptions arising from the evidence of PW1, court below ought to have accepted it and convicted the accused, it was argued.

7. Refuting the above contentions, the contention set up by the learned counsel for the accused was that, section 145 of the NI Act read along with the decision of the Honourable Supreme Court inIndian Bank Association and Ors. v. Union of India (UOI) and Ors. (AIR 2014 SC 2528) would show tha