The Andhra Pradesh High Court while dismissing a petition seeking acceptance of evidence in the form of an affidavit stated that an accused in a cheque-bouncing case is not entitled to forward his evidence by way of an affidavit, since, Section 145 (1) of the Negotiable Instrument Act, 1882 entails only a complainant to tender evidence in such form.
Brief Facts:
The petitioner/ accused contended that a case was initiated against him under section 138 of the Negotiable Instruments Act, and at the stage of examination when he filed his evidence in the form of an affidavit, the same was not accepted by the court. Thereafter, the accused filed a miscellaneous petition praying that the Court may accept his evidence in the form of an affidavit, but that petition, too, was dismissed. The present petition was then filed under Section 482 CrPC seeking to direct the learned Additional Judicial Magistrate of First Class, Srikalahasti, Chittoor District, 2 to accept his evidence in the form of a chief examination affidavit.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner submitted that since the complaint is under Section 138 of the Act, the evidence of the accused can be filed by way of an affidavit and there is no prejudice caused to the other side in leading his evidence by way of affidavit. It was further submitted that subject to the provisions of Section 315 of the Code of Criminal Procedure, the accused can also give his evidence on affidavit.
Contentions of the Respondent:
The learned counsel appearing on behalf of the respondent submitted that the petitioner is not entitled to give his chief evidence by way of an affidavit, vide the bar under Section 145.
Observations of the Court:
The court noted that the point of determination in the present case was could an accused in Section 138 of N.I. Act case, be permitted to give his evidence by way of an affidavit, like the complainant, in view of Section 145 of N.I.Act.
The court stated that the offence under Section 138 is said to have been committed only on the combined fulfilment of the ingredients in the main provision and eventualities in the proviso clauses and the reading of Section 145(1), makes it clear that the provision entails a complainant to give his evidence on an affidavit and no mention is made with respect to the Accused.
The court then referred to the decision of the court in the case of Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore, wherein it was held that Section 145 with its non-obstante clause, as noted above, makes it possible for the evidence of the complainant to be taken in the absence of the accused. But the affidavit of the complainant (or any of his witnesses) may be read in evidence “subject to all just exceptions”. In other words, anything inadmissible in evidence e.g. irrelevant facts or hearsay matters would not be taken in as evidence, even though stated in the affidavit.
The court stated that in that view of the matter, the Petitioner being Accused cannot be permitted to file an affidavit in lieu of Examination-in-Chief, as the provision under Section 145 (1) only entails a complainant to tender evidence in such a mode. When the language of the provision is clear and plain and provides only one meaning, it should be understood that the Act speaks for itself.
The decision of the Court:
The court dismissed the petition.
Case Title: Kadiveti Ramanaiah vs Ponguri Prabhakara Reddy and anr.
Coram: Hon’ble Smt. Justice Venkata Jyothirmai Pratapa
Case No.: Criminal Appeal No. 1481 of 2010
Advocate for the Applicant: Sri Siva Prasad Reddy Venati
Advocate for the Respondent: Ms. D. Prasanna Lakshmi
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