This petition coming on for admission, is heard and disposed of finally with the consent of counsel.

2. The petition is filed by the accused, against whom a complaint is filed before the court below alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (Hereinafter referred to as the ‘NI Act’, for brevity). The petitioner is contesting the case. At the stage when the case was set down for the evidence of the accused, he is said to have filed an application under Section 145(2) of the NI Act, seeking permission of the court to file an affidavit in lieu of oral evidence. The trial court having rejected the application on the ground that the same is not permissible, the present petition is filed.

3. The learned counsel for the petitioner places reliance on the language of Section 145 of the NI Act to contend that the trial court has not taken into consideration the intent of the provision, which has been interpreted by the Apex Court in the case of Indian Bank Association v. Union of India, (2014)5 SCC 590.

4. On the other hand, the learned counsel for the respondent would submit that the trial court has rightly rejected the application in the light of the judgment of the Supreme Court in the case of Mandvi Cooperative Bank limited v. Nimesh B. Thakore, (2010)3 SCC 83. In the said case, the apex court had not agreed with the High Court which had held that Section 145(1) did confer a right on the complainant to give evidence on affidavit. But there was no similar right conferred on the accused. That the legislature apparently had posited, that the immunity conferred on the accused from being compelled to be a witness against himself under Article 20(3) of the Constitution of India, did not warrant the incorporation of the word 'accused' with the word 'complainant' in sub-section 145 of the NI Act. The High Court had gone on to hold that, merely because, Section 145 did not expressly permit the accused to give evidence on affidavit, it did not mean that the Magistrate could not allow the accused to do so by applying the same analogy, unless there was just and reasonable ground to refuse such permission. It was held that there was no express bar on the accused to give evidence on affidavit, either in the NI Act or the Code of Criminal Procedure, 1973 (Hereinafter referred to as the ‘CrPC’, for brevity). The accused was permitted to tender evidence by way of affidavit.

Taking exception to the above reasoning of the High Court, the Apex Court held as follows :

“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. On a bare reading of section 143 (sic Section 145) 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 give his evidence on affidavit by applying the same analogy unless there was a just and reasonable ground to refuse such permission.

47. There are two errors apparent in the reasoning of the High Court. First, if the legislature in their wisdom did not think "it proper to incorporate a word ‘accused’ with the word ‘complainant’ in section 145(1)......", it was not open to the High Court to fill up the self perceived blank. Secondly, the High Court was in error in drawing an analogy between the evidences of the complainant and the accused in a case of dishonored cheque. The case of the complainant in a complaint under section 138 of the Act would be based largely on documentary evidence.

48.