Recently, the Orissa High Court upheld a trial court’s decision rejecting affidavit evidence filed by accused persons in a cheque dishonour case, firmly ruling that such a course is impermissible under the statutory framework of the Negotiable Instruments Act, 1881. The Court decisively held that the benefit of leading evidence through affidavit is statutorily confined to the complainant, underscoring a crucial procedural distinction with the observation that courts “cannot supply words to a statute which the legislature has deliberately omitted.”
Brief Facts:
The dispute arose out of a commercial relationship dating back to 2010–2011, where financial transactions between the parties eventually turned contentious. The controversy escalated when a cheque, allegedly issued as security by the petitioners, was presented for encashment after insertion of a date without their consent, leading to its dishonour. This triggered proceedings under Section 138 of the Negotiable Instruments Act before the SDJM, Bhubaneswar. During trial, the accused sought to place their defence evidence on affidavit, citing age-related constraints and reliance on summary trial principles under Sections 143–147 of the Act. However, the complainant objected, leading the trial court to discard such affidavit evidence and direct the accused to adduce evidence in accordance with law, prompting the present challenge before the High Court.
Contentions of the Petitioner:
Counsel for the petitioners argued that the trial court acted mechanically and failed to properly interpret Section 145 of the Negotiable Instruments Act. It was contended that sub-section (2) permits the Court to summon and examine persons who have given evidence on affidavit, thereby implying flexibility in procedural application. Emphasis was also placed on the Supreme Court’s decision in Indian Bank Association v. Union of India, asserting that procedural simplification and expeditious disposal of cheque bounce cases justify acceptance of affidavit evidence even from the accused. Additionally, personal hardship, including the advanced age of one petitioner, was cited to justify reliance on affidavit evidence.
Contentions of the Respondent:
The respondent, on the other hand, argued that the statutory language of Section 145(1) clearly restricts affidavit evidence to the complainant alone. Reliance was placed on the Supreme Court’s ruling in Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore, which categorically held that the accused has no right to lead evidence by affidavit. It was further submitted that Section 145(2) merely provides a mechanism for summoning and cross-examining witnesses who have already filed affidavits, and does not extend any substantive right to the accused to adopt affidavit evidence as a mode of defence.
Observations of the Court:
The High Court undertook a detailed examination of Section 145 of the Negotiable Instruments Act and the binding precedents governing the field. It noted that the statutory text explicitly uses the term “complainant” in sub-section (1), thereby confining the privilege of affidavit evidence to the complainant alone. Rejecting any attempt to extend this benefit to the accused through interpretative expansion, the Court emphatically observed that “the provision… cannot be construed to confer any right upon the accused… as the Court cannot supply words to a statute which the legislature has deliberately omitted.”
Further relying on Mandvi Cooperative Bank Ltd., the Court reinforced that allowing affidavit evidence for the accused would amount to judicial overreach into legislative territory. It highlighted the fundamental distinction between the nature of evidence led by the complainant, largely documentary, and that of the accused, which may involve diverse forms of rebuttal.
The Court also clarified that the ruling in Indian Bank Association does not dilute or overrule the principle laid down in Mandvi Cooperative Bank Ltd., as it was confined to procedural streamlining and not substantive evidentiary rights. Finding the trial court’s reasoning consistent with settled law, the High Court saw no infirmity warranting interference.
The decision of the Court:
The High Court dismissed the petition, affirming the trial court’s order and holding that in proceedings under Section 138 of the Negotiable Instruments Act, the accused cannot adduce evidence-in-chief by way of affidavit, as the statutory scheme restricts such a right exclusively to the complainant. The ruling reinforces the principle that procedural conveniences cannot override clear legislative intent, and courts must adhere strictly to the evidentiary framework prescribed by law.
Case Title: Brahmananda Pradhan & Anr Vs. State of Odisha & Anr
Case No.: CRLMC No.2960 of 2025
Coram: Hon'ble Ms. Justice Sanjeeb K Panigrahi
Advocate for the Petitioner: Adv. Jajati Keshari Khuntia
Advocate for the Respondent: ASC Sonak Mishra, Sr. Adv. Banshidhar Baug,
Read Judgment @Latestlaws.com
Picture Source :