Bombay High Court
Nitin S/O Shriram Sabe vs Prakashrao S/O Keshavrao Deshmukh on 18 January, 2024
Author: M. W. Chandwani
Bench: M. W. Chandwani
2024:BHC-NAG:798
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO. 718 OF 2022
Shri Nitin S/o. Shriram Sabe,
Age: 42 years, Occ. Agri./Business,
R/o. Nandura, District Buldhana. . . . PETITIONER
// V E R S U S //
Shri Prakashrao S/o. Keshavrao Deshmukh,
Age 70 years, Occ. Business,
R/o. Venkatesh Nagar, Shegaon,
District Buldhana. . . . RESPONDENT
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Shri Shrikant A. Dutonde, Advocate for petitioner.
Shri N. R. Saboo, Advocate for respondent.
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CORAM :- M. W. CHANDWANI, J.
DATED :- 18.01.2024
ORAL JUDGMENT (PER: M. W. CHANDWANI):-
Heard.
2. Rule. Rule made returnable forthwith. Heard finally by
consent of the learned counsel for the parties.
3. The petition challenges the order dated 01.04.2022 passed
below Exh.87 in Summary Criminal Case No. 329/2015 passed by the
learned JMFC, Shegaon, District Buldhana rejecting the application of
the petitioner/accused for giving him an opportunity to lead oral
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evidence in the matter. The petition also lays a challenge to the order
dated 24.08.2022 passed in Criminal Revision No. 21/2022 passed by
the learned Adhoc District Judge-1 and Additional Sessions Judge,
Khamgaon, District Buldhana confirming the order passed by the
learned JMFC, Shegaon.
4. The respondent has filed the criminal complaint for the
offence punishable under Section 138 of the Negotiable Instrument
Act, 1881 (for short, "NI Act") against the petitioner. After conclusion
of the evidence of the complainant side, the petitioner proposed
himself to be examined as a witness and filed an affidavit of
examination-in-chief of himself. He was cross-examined. When the
matter was fixed for final argument, the petitioner moved the
application inter alia contending that the accused is not entitled to file
an affidavit of examination-in-chief in place of his oral evidence as
contemplated under Section 145 of the NI Act and therefore, he sought
permission to adduce his oral evidence in support of his defence. The
said application was opposed by the respondent. The Trial Court
passed the impugned order rejecting the application of the petitioner.
An unsuccessful attempt was made before the learned Adhoc District
Judge-1 and Additional Sessions Judge, Khamgaon, District Buldhana.
Feeling aggrieved with the impugned orders, the present petition came
to be filed.
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5. Heard Shri S. A. Dutonde, learned counsel for the
petitioner. He has invited my attention to Section 145 of the NI Act,
the decision in the case of Mandvi Co-operative Bank Ltd. Vs. Nimesh
B. Thakore1 as well as decisions of this Court in the case of Murlidhar
Chandiram Gyanchandani Vs. Jai Agencies, Pusad 2 and SBI Global
Factors Ltd. Vs. State of Maharashtra3.
6. The question whether the accused, in proceedings under
Section 138 of the NI Act, is entitled to file an affidavit in lieu of the
examination-in-chief is no more res integra. In the decision of the
Supreme Court in the case of Mandvi Co-operative Bank Ltd. (supra),
in paragraph no. 32, it is held as under:-
"32. We are completely unable to appreciate the submission.
The plea for a literal interpretation of section 145(2) is based
on the unfounded assumption that the language of the section
clearly says that the person giving his evidence on affidavit, on
being summoned at the instance of the accused must start his
deposition in court with examination-in-chief. We find nothing
in Section 145(2) to suggest that. We may also make it clear
that Section 137 of the Evidence Act does not define "examine"
to mean and include the three kinds of examination of a
witness; it simply defines "examination-in- chief", "cross-
examination" and "re-examination". What section 145(2) of the
Act says is simply this. The court may, at its discretion, call a
person giving his evidence on affidavit and examine him as to
the facts contained therein. But if an application is made either
by the prosecution or by the accused the court must call the
person giving his evidence on affidavit, again to be examined as
to the facts contained therein. What would be the extent and
nature of examination in each case is a different matter and
that has to be reasonably construed in light of the provision of
Section 145(1) and having regard to the object and purpose of
the entire scheme of Sections 143 to 146. The scheme of
1 (2010) 3 SCC 83
2 2014 ALL MR (Cri) 1304
3 2022 (1) Mh.L.J. 384
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Sections 143 to 146 does not in any way affect the Judge's
powers under section 165 of the Evidence Act."
7. The decision in the case of Murlidhar Chandiram
Gyanchandani (supra), the Co-ordinate Bench of this Court, in
paragraph no. 6, has held as under:-
"6. The learned counsel for the petitioner submitted that
petitioner is not assailing part of order permitting respondent to
lead his evidence by examining himself. It is submitted that
such request was not objected by petitioner at any point of
time. However, as the matter is delayed on some other pretext
and thereby spirit of Negotiable Instrument Act of expeditious
disposal of cases for offence thereunder, some fetters may be
put upon the respondent accused for adducing the evidence in
accordance with the law in some time bound frame to achieve
spirit of the act."
8. In a recent decision of this Court in the case of SBI Global
Factors Ltd. (supra), this Court has held that an accused could not be
permitted to file an affidavit of evidence in lieu of the examination-in-
chief.
9. In view of the law enunciated in the decisions of the
Supreme Court and of this Court that the accused could not be
permitted to file an affidavit of evidence in lieu of the examination-in-
chief, I find substance in the argument of the learned counsel for the
petitioner that instead the petitioner shall be allowed to adduce his
oral evidence.
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10. In view of the above, the order of learned Magistrate of
not permitting the petitioner to adduce oral evidence, does not stand.
Since, earlier the petitioner himself submitted affidavit of evidence in
lieu of his oral evidence, he was cross-examined. This consumed a lot
of time of the Trial Court. Therefore, the petition needs to be allowed
with costs. Hence, the following order:-
i) The impugned orders dated 24.08.2022 passed in
Criminal Revision No. 21/2022 and order dated 01.04.2022 passed
below Exh. 87 in Summary Criminal Case No. 329/2015 are hereby set
aside.
ii) The evidence of the petitioner i.e. affidavit of evidence in
lieu of the examination-in-chief is discarded from the record.
iii) The petitioner/accused is at liberty to adduce his oral
evidence on payment of costs of Rs.5,000/- (Rs. Five Thousand).
iv) The parties are directed to appear before the Trial Court
on 31.01.2024.
v) The petitioner is at liberty to adduce his oral evidence, if
he wants to examine himself in the case, on the said date or on such
other dates, as may be fixed by the Trial Court on the said date.
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vi) Since, the case appeares to be of the year 2015, the Trial
Court is directed to decide the case at the earliest and in any case on
or before 30.04.2024.
The application is allowed in the above terms. Rule made
absolute accordingly.
(M. W. CHANDWANI, J.)
RR Jaiswal
Signed by: Mr. Rajnesh Jaiswal
Designation: PA To Honourable Judge
Date: 20/01/2024 12:58:11
