IMPORTANT POINT
The right to provide evidence via affidavit under section 145 of the Negotiable Instruments Act, 1881 is exclusively granted to the complainant, and the accused does not possess this right.

JUDGMENT

N. J. Jamadar, J. - Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, heard finally.

2. The following question of law is sought to be raised in all these petitions, which arises in the backdrop of almost identical facts.

'Whether a person who is an accused in complaint for an offence punishable under section 138 of NI Act, 1881 is entitled to give evidence on an affidavit as provided under section 145 of the NI Act, 1881 ?'

3. The bare minimum facts required to be noted to determine the aforesaid question of law can be summarized as under:-

The original complainant-Respondent No. 2, in each of the petitions, filed complaints for commission of offence punishable under section 138 of Negotiable Instruments Act, 1881 (NI Act, 1881) alleging issue, presentment and dishnour of the cheques, drawn by the petitioners and the failure of the petitioners to pay the amount covered by the cheques despite service of the demand notice within the stipulated period. The complainant adduced evidence and upon completion of the evidence, the statement of the accused, under section 313 of the Code of Criminal Procedure, 1973 came to be recorded. In the said examination under section 313 of the Code, the petitioner No.2/ accused stated that, he would examine himself on oath and also lead evidence in defence.

4. The petitioners, thereafter, tendered an affidavit in lieu of examination in chief of petitioner No. 2. The respondent No. 2-complainant objected to the leading of evidence on an affidavit by the accused on the premise that the accused has no right to adduce evidence by way of affidavit under section 145 of the NI Act, 1881.

5. By the impugned order, the learned Metropolitan Magistrate declined to accept the evidence of the accused on an affidavit, while granting liberty to the accused to examine himself on oath in the witness box.

6. Being aggrieved, the petitioners-accused have invoked writ jurisdiction.

7. The substance of the petition is that if viewed in the light of the object of insertion of the provisions contained in section 143 to 147 of the NI Act, 1881, by Act, 55 of 2002, the accused also has a right to adduce his evidence on an affidavit. The learned Metropolitan Magistrate was in error in declining to accept such evidence on affidavit by placing reliance on the decision of the Supreme Court in the case of Mandvi Cooperative bank Limited vs. Nimesh B. Thakore, (2010) 3 Supreme Court Cases 83 as the subsequent judgment of the Supreme Court in the case of Indian Bank Association and Ors. vs. Union of India and Ors., AIR 2014 Supreme Court 2528 had further expanded the scope of provisions contained in section 145 of the NI Act, 1881, with a view to give impetus for expeditious conclusion of the proceedings under section 138 of NI Act, 1881 and the said decision was not properly construed by the learned Magistrate. Thus, to advance the object of the provisions contained in sections 143 and 145 of the NI Act, 1881, the petitioners/ accused deserve to be permitted to adduce the evidence on an affidavit.

8. I have heard Mr. Mangesh Patel, learned counsel for the petitioner, Mr. S.R. Agarkar, learned APP for the State and Mr. Jatin Karia (Shah), learned counsel for respondent No. 2.

9. At the outset, Mr. Karia, learned counsel for respondent No. 2 submitted that the aforesaid question sought to be raised by the petitioner/accused is no longer res integra. The question stands firmly concluded against the accused by the decision of the Supreme Court in the case of Mandvi Cooperative bank (supra). Moreover, this Court in the cases of SBI Global Factors Limited vs. The State of Maharashtra and Ors., 2021 SCC OnLine Bom 365 and Nitin Shriram Sabe vs. Prakashrao Keshavrao Deshmukh,Cri. WP.No. 718 of 2022, has repelled the endeavour of the accused, who are facing the prosecution under section 138 of NI Act, to reopen the issue on the ground of subsequent judgment in the cases of Indian Bank Associati