Bombay High Court
Conroy J F De Mello vs M/S. Civilco Engineers And Associates ... on 4 August, 2025
2025:BHC-GOA:1431
2025:BHC-GOA:1431
19,20 WPCR 43-2025
Jose
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO.43 OF 2025
WITH
CRIMINAL WRIT PETITION NO.42 OF 2025
Conroy J.F. De Melo
Son of Adv. Fortunato De Melo
Aged 45 years, Married,
Businessman, Indian National,
R/o F-5, Orient Towers, Comba,
Margao, Goa - 403601 ... Petitioner.
Versus
M/s Civilco Engineers & Associates,
Through its Partner,
Shri. Gaus Mohammed Shiraguppi
Aged 52 years, Business, Married,
Having office at SF-4, Block D,
Quadria Plaza, Haveli, Curti,
Ponda, Goa - 403401 ... Respondent.
Mr. Charles Elton da Gloria F E, Advocate for the Petitioner.
Mr. Gaurish Agni with Mr. Kishan Kavlekar, Mr. Madhav
Cuncoliencar and Mr. Yash Naik, Advocates for the
Respondent.
CORAM: VALMIKI MENEZES, J.
DATED: 4th August, 2025
ORAL JUDGMENT:
1. Registry to waive office objections and register the matters.
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19,20 WPCR 43-2025
2. Rule. Rule made returnable forthwith. With the consent of the
parties, petitions are disposed of finally.
3. These two petitions impugn orders dated 06.12.2024
respectively, passed in Criminal Case Nos.OA/30/2020 and
OA/925/2019 by the J.M.F.C., A-Court, Ponda. By the impugned
orders, the J.M.F.C. has dismissed an application filed by the
Petitioner, the original Accused in these proceedings, under Section
138 of the Negotiable Instruments Act and refused leave to the
Accused to lead his evidence. The Respondent is the Complainant in
both these complaints under Section 138 of the Negotiable
Instruments Act. Criminal Case No. OA/30/2020 pertains to a
cheque dated 17.10.2019 for an amount of Rs.5,00,000/- whilst
Criminal Case No. OA/925/2019 pertains to a cheque dated
30.09.2019 for an amount of Rs.20,00,000/-. Both these cheques
have been signed and executed by the Accused/Petitioner herein in
favour of the Complainant/Respondent.
4. In both complaints, after the cheques were dishonoured,
notices were issued to the Accused calling upon the Accused to pay
the amounts under the cheque; Accused has not replied to these
notices, pursuant to which the complaints came to be filed before the
Magistrate. Unfortunately, instead of the Magistrate proceeding with
these cheque bounce cases, by filing a summary procedure provided
under Section 260 of Cr.P.C., the Magistrate recorded the Plea of the
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Accused, who pleaded to be tried. Thereafter, the verification of the
complaint on affidavit was treated as the Complainant's evidence and
the Accused filed an application under Sub-Section 2 of Section 145
of the Negotiable Instruments Act seeking leave to cross examine the
Complainant.
5. Perusing of the application would reveal that there is no reason
cited in the application to justify the grant of leave for cross-
examination. The only reason stated in the application is that the
matter is a commercial dispute. Contrary to the various Judgments of
the Supreme Court and of this Court, which require proper reasons
to be stated in such an application, to justify leave to cross examine
the Complainant, the Magistrate, accepting the reasons cited by the
Accused, that the matter pertains to commercial dispute, granted
leave to cross examine by order dated 26.02.2024, in both cases.
6. In the examination-in-chief of the Complainant, the
Complainant relied upon a "Agreement of Payment" dated
18.09.2019, execution of which was not denied by the Accused. It was
on the basis of this agreement, according to the Complainant, that the
cheques in question were executed in favour of the Complainant,
which have been dishonoured.
7. Going through the cross-examination of the Complainant,
there is no denial of the execution of this agreement. The
Complainant has also not been cross examined, nor has the
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Complainant been cross examined as to the contents of the
agreement. In the cross examination, the only suggestion that has
been put to the Complainant is that the cheques were issued to
facilitate a business deal and not for repayment of a friendly loan. Even
in the cross examination, there is absolutely no defence raised, nor is
the transaction contained in the agreement denied. There is not even
a suggestion as to what other contract or understanding was there
between the parties raised as a defence as is now being done.
8. The matters were then listed on 16.08.2024 for recording the
Statement under Section 313 of the Accused. On that date and
thereafter on 27.08.2024, the Accused did not remain present either
physically or through V.C. for reasons of which his statement could
not be recorded. On 04.09.2024, he attended the Court through V.C.
and his Statement under Section 313 Cr.P.C. was recorded virtually,
and the Accused was directed to sign this statement and produce the
same on the next date of hearing. During the recording of the
Statement under Section 313, the Accused accepted that he had
signed the Agreement of Payment dated 18.09.2019 and then stated
that he would step into the witness box and give evidence in defence,
and rely upon WhatsApp chats and telephonic recordings which he
would produce in evidence. Instead of recording a written waiver of
his right under Section 315 Cr.P.C., in terms of Clause (a) of the
proviso to Sub-Section 1 of Section 315, the Court directly fixed the
matter on 07.10.2024, supposedly for the Accused to file an affidavit
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in evidence. There are two serious flaws which the learned Magistrate
committed at this stage.
9. If the Accused wishes to lead evidence by examining himself,
he is required in terms of Clause (a) of the proviso to Sub-Section 1 of
Section 315, to record the waiver of his right and to state in writing
that he wishes to depose in the matter. The Magistrate has proceeded
to allow the Accused to lead evidence without the Accused first, on
his own, making a request in writing, in terms of Clause (a) of the
proviso to Section 315. This was a stage to be first complied with by
the Magistrate, since the Accused cannot otherwise be compelled to
act as a witness in his case, but where he wants to examine himself
must specifically waive his right and record the same in writing by a
request to the Court.
10. Thereafter, the Magistrate has proceeded to direct the Accused
to lead his evidence by filing an affidavit, which again is not
permissible, even in complaints filed under Section 138 of the
Negotiable Instruments Act. Section 143 of the Negotiable
Instruments Act provides for the Complainant giving evidence on
affidavit, but does not provide for evidence of the Accused to be led
through filing an affidavit in lieu of his evidence.
11. Sub-Section 2 of Section 145 permits the Court, if it thinks fit,
and on an application of the Prosecution or the Accused, to examine
any person summoned to give evidence on affidavit, but does not
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permit such evidence of the Accused to be recorded on affidavit.
12. In SBI Global Factors Ltd. v. State of Maharashtra & ors.
reported in 2022 (1) Mh.L.J. 384, this Court considered a similar
case, where the question was whether the Accused in proceedings
under Section 138 of the Negotiable Instruments Act, was entitled to
file an affidavit in lieu of examination in chief or not after considering
the Judgment of the Hon'ble Supreme Court in Mandvi Co-op Bank
Ltd. v. Nimesh B. Thakore, reported in 2010(4) Mh.L.J. (S.C.) 220,
in paragraph 5 has held that such a course of permitting an Accused
to lead evidence through an affidavit is not permissible under Section
145 of the Negotiable Instruments Act. The relevant portions of the
Judgment are quoted below:
"5. The question, whether an accused in proceedings under Section 138
of the N.I. ct is entitled to file an ffidavit in-lieu of Examination-in-
Chief or not, is no more res-integra. The Hon'ble Supreme Court in the
case of Mandvi Co-op. ank Ltd. vs. Nimesh . Thakore, reported in
2010(4) Mh.L.J. (S.C.) 220 = 2010(2) Mh.L.J. (Cri.) (S.C.) 610 =
Manu/SC/0016/2010: IR 2010 SC 1402: (2010) 3 SCC 83, in para
Nos.30, 31 and 32 has held as under:-
"30. Coming now to the last question with regard to the right of the
accused to give his evidence, like the complainant, on affidavit, the High
Court has held that subject to the provisions of sections 315 and 316 of
the Code of Criminal Procedure the accused can also give his evidence
on affidavit. The High Court was fully conscious that section 145(1) does
not provide for the accused to give his evidence, like the complainant, on
affidavit. ut the High Court argued that there was no express bar in
law against the accused giving his evidence on affidavit and more
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importantly providing a similar right to the accused would be in
furtherance of the legislative intent to make the trial process swifter. In
paragraph 29 of the judgment, the High Court observed as follows:-"It
is true that section 145(1) confers a right on the complainant to give
evidence on affidavit. It does not speak of similar right being conferred
on the accused. The Legislature in their wisdom may not have thought it
proper to incorporate a word 'accused with the word 'complainant' in sub-
section (1) of section 145 in view of the immunity conferred on the
accused from being compelled to be a witness against himself under
rticle 20(3) of the Constitution of India...."
Then in paragraph 31 of the judgment it observed: ".... Merely because,
section 145(1) does not expressly permit the accused to do so, does not
mean that the Magistrate cannot allow the accused to give his evidence
on affidavit by applying the same analogy unless there is just and
reasonable ground to refuse such permission. There is no express bar on
the accused to give evidence on affidavit either in the ct or in the
Code..... I find no justified reason to refuse permission to the accused to
give his evidence on affidavit subject to the provisions contained in
sections 315 and 316 of the Code."
31. On this issue, we are afraid that the High Court overreached. itself
and took a course that amounts to taking-over the legislative functions.
32. On a bare reading of section 143 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. ut 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. There are two errors apparent in the
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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 Courtto
fill up the self perceived blank. Secondly, the High Court was in eFFOR
in drawing an analogy between the evidences of the complainant and the
accused in a case of dishonoured cheque. The case of the complainant in
a complaint under section 138 of the ct would be based largely on
documentary evidence. The accused, on the other hand, in a large
number of cases, may not lead any evidence at all and let the prosecution
stand or fall on its own evidence. In case the defence does lead any
evidence, the nature of its evidence may not be necessarily documentary:
in all likelihood the defence would lead other kinds of evidences to rebut
the presumption that the issuance of the cheque was not in the discharge
of any debt or liability. This is the basic difference between the nature of
the complainant's evidence and the evidence of the accused in a case of
dishonoured cheque. It is, therefore, wrong to equate the defence evidence
with the complainant's evidence and to extend the same option to the
accused as well."
6. The Hon'ble Supreme Court in the case of Indian anks ssociation
and ors. vs. Union of India and ors., reported in 2014(6) Mh.L.J. (S.C.)
10 = 2014(4) Mh.L.J. (Cri.) (S.C.) 35 M NU/SC/0387/2014: IR
2014 SC 2528: (2014) 5 SCC 590, while dealing with the issue of large
pendency of cases arising under Section 138 of the Negotiable
Instruments ct, after taking into consideration various decisions in the
field and also the ratio in the case of Mandvi Co-op. ank Ltd. (supra),
in para No.21, issued following directions.
"21. Many of the directions given by the various High Courts, in our
view, are worthy of emulation by the Criminal Courts all over the
country dealing with cases under Section 138 of the Negotiable
Instruments ct, for which the following directions are being given :-
DIRECTIONS:-
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1) Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day
when the complaint under Section 138 of the ct is presented, shall
scrutinize the complaint and, if the complaint is accompanied by the
affidavit, and the affidavit and the documents, if any, are found to be
in order, take cognizance and direct issuance of summons.
2) MM/JM should adopt a pragmatic and realistic approach while
issuing summons. Summons must be properly addressed and sent by post
as well as by e-mail address got from the complainant. Court, in
appropriate cases, may take the assistance of the police or the nearby
Court to serve notice to the accused. For notice of appearance, a short
date be fixed. If the summons is received back un-served, immediate
follow up action be taken.
3) Court may indicate in the summon that if the accused makes an
application for compounding of offences at the first hearing of the case
and, if such an application is made, Court may pass appropriate orders
at the earliest.
4) Court should direct the accused, when he appears to furnish a bail
bond, to ensure his appearance during trial and ask him to take notice
under Section 251Cr.P.C. to enable him to enter his plea of defence and
fix the case for defence evidence, unless an application is made by the
accused under Section 145(2) for recalling a witness for cross-
examination.
5) The Court concerned must ensure that examination-in-chief. cross-
examination and re-examination of the complainant must be conducted
within three months of assigning the case. The Court has option of
accepting affidavits of the witnesses, instead of examining them in
Court. Witnesses to the complaint and accused must be available for
cross-examination as and when there is direction to this effect by the
Court."
7. The learned Single Judge of this Court in the case of Murlidhar
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Chandiram Gyanchandani VS Jai gencies through proprietor nil
Ramlochansingh Thakur, reported in 2013 MhLJ Online (Cri) 115 =
M NU/MH/2736/2013: IV(2014) C 372 ( om.), while dealing
with similar issue, as the case in hand, in para No.6, has held as under.
" fter giving thoughtful considerations to the submissions advanced
and controversy involved being restricted only to the extent of learned
Magistrate having permitted the respondent-accused to adduce his
evidence by way of an affidavit and the decision pointed out as well as
the provisions to which attention is drawn, clearly indicating that such
a direction could not have been given due to no such a stipulation is
contained in the relevant section the relevant part of the order impugned
will be required to be quashed and set aside Similarly, for expeditious
disposal of said case, the direction deserves to be given, as canvassed."
8. In view of the elucidation of law by the Hon'ble Supreme Court in the
case of Mandvi Co-op. ank Ltd. (supra), it is clear that, an accused in
a proceedings under Section 138 of the Negotiable Instruments ct
cannot be permitted to file an ffidavit-of-Evidence in lieu of
Examination-in-Chief."
13. A similar view has been taken by this Court in Viral Enterprises
v. State of Maharashtra, 2024 SCC OnLine Bom 1774, in a batch of
petitions which deal with the very same issue. This Judgment makes
reference to Mandvi Co-op Bank Ltd. (supra) and Indian Banks
Association & Ors. v. Union of India reported in (2014) 5 SCC 590
and has held as under:
"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 ct, 1881, by ct, 55 of 2002, the accused also has a right
to adduce his evidence on an affidavit. The learned Metropolitan
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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 v. Nimesh .
Thakore, (2010) 3 SCC 83, as the subsequent judgment of the
Supreme Court in the case of Indian ank ssociation v. Union of
India, (2014) 5 SCC 590, had further expanded the scope of
provisions contained in section 145 of the NI ct, 1881, with a view
to give impetus for expeditious conclusion of the proceedings under
section 138 of NI ct, 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 ct, 1881,
the petitioners/accused deserve to be permitted to adduce the
evidence on an affidavit.
19. This Court while dealing with a large number of petitions
wherein the various facets of the amended provisions of NI ct, 1881
came up for consideration, inter alia, held that the evidence in
defence like the complainant's evidence also be given on an affidavit.
When the matter went in appeal before the Supreme Court, in the
case of Mandvi Cooperative bank (supra), the Supreme Court, inter
alia, considered the following question--:
"Whether the right to give evidence on affidavit as provided to
the complainant under Section 145(1) of the ct is also
available to the accused?"
20. fter an elaborate analysis, the Supreme Court held that this
Court had overreached itself and took the course that amounts to
taking over legislative functions. The observations of the Supreme
Court in paragraph Nos. 44 to 48 and 52 are instructive and, hence,
extracted below.
44] Coming now to the last question with regard to the right of
the accused to give his evidence, like the complainant, on
affidavit, the High Court has held that subject to the provisions
of sections 315 and 316 of the Code of Criminal Procedure the
accused can also give his evidence on affidavit. The High Court
was fully conscious that section 145(1) does not provide for the
accused to give his evidence, like the complainant, on affidavit.
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ut the High Court argued that there was no express bar in law
against the accused giving his evidence on affidavit and more
importantly providing a similar right to the accused would be in
furtherance of the legislative intent to make the trial process
swifter.
45] In para 29 of the judgment, the High Court observed as
follows:
"It is true that section 145(1) confers a right on the
complainant to give evidence on affidavit. It does not speak of
similar right being conferred on the accused. The Legislature
in their wisdom may not have thought it proper to incorporate
a word 'accused' with the word 'complainant' in sub-section
(1) of section 145 in view of the immunity conferred on the
accused from being compelled to be a witness against himself
under rticle 20(3) of the Constitution of India...."
Then in paragraph 31 of the judgment it observed:
".... Merely because, section 145(1) does not expressly
permit the accused to do so, does not mean that the
Magistrate cannot allow the accused to give his evidence
on affidavit by applying the same analogy unless there is
just and reasonable ground to refuse such permission.
There is no express bar on the accused to give evidence on
affidavit either in the ct or in the Code..... I find no
justified reason to refuse permission to the accused to give
his evidence on affidavit subject to the provisions
contained in sections 315 and 316 of the Code."
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
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. ut 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
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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
dishonoured cheque. The case of the complainant in a
complaint under section 138 of the ct would be based largely
on documentary evidence.
48] The accused, on the other hand, in a large number of cases,
may not lead any evidence at all and let the prosecution stand
or fall on its own evidence. In case the defence does lead any
evidence, the nature of its evidence may not be necessarily
documentary; in all likelihood the defence would lead other
kinds of evidences to rebut the presumption that the issuance
of the cheque was not in the discharge of any debt or liability.
This is the basic difference between the nature of the
complainant's evidence and the evidence of the accused in a
case of dishonoured cheque. It is, therefore, wrong to equate the
defence evidence with the complainant's evidence and to extend
the same option to the accused as well.
......
52] In light of the above we have no hesitation in holding that
the High Court was in error in taking the view, that on a
request made by the accused the magistrate may allow him to
tender his evidence on affidavit and consequently, we set aside
the direction as contained in sub-paragraph (r) of paragraph
45 of the High Court judgment. The appeal arising from SLP
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(Crl.) No. 3915/2006 is allowed.
21. Indian ank ssociation and Others filed Writ Petition before
the Supreme Court under rticle 32 of the Constitution of India
seeking appropriate guidelines, directions to be followed by all the
Courts dealing with complaints under section 138 of NI ct, 1881
so as to ensure expeditious disposal of the complaints. In Indian
ank ssociation (supra), the Supreme Court took note of the
decision in the case of Mandvi Cooperative bank (supra) and issued
a number of directions. Direction 5, on which Mr. Patel placed very
strong reliance, reads as under:--
(5) The Court concerned must ensure that examination-in-chief,
cross-examination and re-examination of the complainant must
be conducted within three months of assigning the case. The
Court has option of accepting affidavits of the witnesses, instead
of examining them in Court. Witnesses to the complainant and
accused must be available for cross-examination as and when
there is direction to this effect by the Court.
(emphasis supplied)
26. Two questions come to the fore. First whether Indian ank
ssociation (supra) has taken a divergent view? Second, even if one
proceeds on the premise that there is a deviation from the decision in
the case of Mandvi Cooperative bank (supra), whether the decision
in the case of Indian ank ssociation (supra) commands
precedential value for being latter in point of time.
27. In the case of Indian ank ssociation (supra), after referring
to the decision in the case of Mandvi Cooperative bank (supra), the
Supreme Court observed, inter alia, as under:--
12] The scope of Section 145 came up for consideration before
this Court in Mandvi Cooperative ank Limited v. Nimesh .
Thakore, (2010) 3 SCC 83, and the same was explained in that
judgment stating that the legislature provided for the
complainant to give his evidence on affidavit, but did not provide
the same for the accused. The Court held that even though the
legislature in their wisdom did not deem it proper to incorporate
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a word "accused" with the word "complainant" in Section
145(1), it does not mean that the Magistrate could not allow the
complainant to give his evidence on affidavit, unless there was
just and reasonable ground to refuse such permission.
......
16] We have indicated that under Section 145 of the ct, the
complainant can give his evidence by way of an affidavit and
such affidavit shall be read in evidence in any inquiry, trial or
other proceedings in the Court, which makes it clear that a
complainant is not required to examine himself twice i.e. one
after filing the complaint and one after summoning of the
accused. ffidavit and the documents filed by the complainant
along with complaint for taking cognizance of the offence are
good enough to be read in evidence at both the stages i.e. pre-
summoning stage and the post summoning stage. In other words,
there is no necessity to recall and re-examine the complaint after
summoning of accused, unless the Magistrate passes a specific
order as to why the complainant is to be recalled. Such an order
is to be passed on an application made by the accused or under
Section 145(2) of the ct suo moto by the Court. In summary
trial, after the accused is summoned, his plea is to be recorded
under Section 263(g) Cr. P.C. and his examination, if any, can
be done by a Magistrate and a finding can be given by the Court
under Section 263(h) Cr. P.C. and the same procedure can be
followed by a Magistrate for offence of dishonour of cheque since
offence under Section 138 of the ct is a document based offence.
We make it clear that if the proviso (a), (b) & (c) to Section 138
of the ct are shown to have been complied with, technically the
commission of the offence stands completed and it is for the
accused to show that no offence could have been committed by
him for specific reasons and defences.
28. From a correct reading of the decision in the case of Indian ank
ssociation (supra), I find it rather difficult to accede to the
submission on behalf of the accused that the said decision deviates
from the view taken by the Supreme Court in the case of Mandvi
Cooperative bank (supra) in the matter of permitting the accused to
lead evidence on an affidavit. The question that arose for
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consideration in the case of Mandvi Cooperative bank (supra) was
in the context of the import of amended section 143 and 145 of the
NI ct, 1881, in particular. On the contrary, a larger issue of
expeditious completion of the trial in the complaints under section
138 of the NI ct, 1881 was the subject matter of the Writ Petition
filed by the Indian ank ssociation (supra). In that context, the
Supreme Court gave certain directions. However, despite noting the
decision in the case of Mandvi Cooperative bank (supra), especially
the fact that the provisions contained in section 145 were restricted
to permitting the complainant to lead evidence on affidavit and do
not provide the same dispensation to the accused, Indian ank
ssociation (supra) did not struck a discordant note.
29. It is true in clause 5 of the directions in paragraph 21 in the case
of Indian ank ssociation (supra) (extracted above), the Supreme
Court observed that the Court has option of accepting affidavits of
the witnesses, instead of examining them in Court. However, the
said direction cannot be read out of context. It is well recognized that
the words in a judgment cannot be read like statute. decision is an
authority for what it actually decides and not what logically flows
from the said decision.
30. In the case of Mandvi Cooperative bank (supra), a ench of
coequal strength of the Supreme Court has elaborately considered
the specific question as to whether an accused can be permitted to
adduce evidence on oath and ruled against such course of action
ascribing reasons. It cannot be urged that in the case of Indian ank
ssociation (supra), another two Judge ench of the Supreme
Court delved into the correctness of the said view and took a
diametrically opposite view. The decision in the case of Mandvi
Cooperative bank (supra), in my view, still holds the field.
31. The second aspect of Indian ank ssociation (supra), being a
decision latter in point of time, commands precedence, may not
detain the Court. The legal position is absolutely clear.
32. s noted above, in my humble opinion, there is no conflict
between the decisions in the cases of Mandvi Cooperative bank
(supra) and Indian ank ssociation (supra). Even if one proceeds
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on the premise that decisions in the cases of Mandvi Cooperative
bank (supra) and Indian ank ssociation (supra) are
irreconcilable, the rule is to apply the earliest view as the succeeding
one would fall in the category of per incuriam. It would be suffice to
note the statement of law in the case of Sundeep Kumar afna v.
State of Maharashtra'.
19] It cannot be over-emphasised that the discipline demanded by
a precedent or the disqualification or diminution of a decision on
the application of the per incuriam rule is of great importance,
since without it, certainty of law, consistency of rulings and
comity of Courts would become a costly casualty. decision or
judgment can be per incuriam any provision in a statute, rule or
regulation, which was not brought to the notice of the Court.
decision or judgment can also be per incuriam if it is not possible
to reconcile its ratio with that of a previously pronounced
judgment of a Co-equal or Larger ench; or if the decision of a
High Court is not in consonance with the views of this Court. It
must immediately be clarified that the per incuriam rule is
strictly and correctly applicable to the ratio decidendi and not to
obiter dicta. It is often encountered in High Courts that two or
more mutually irreconcilable decisions of the Supreme Court are
cited at the ar. We think that the inviolable recourse is to apply
the earliest view as the succeeding ones would fall in the category
of per incuriam.
(emphasis supplied)"
14. The Magistrate has, therefore, acted with material irregularities
whilst allowing for the above procedure which is contrary to the
provision of Section 145 of the Negotiable Instruments Act and to the
aforementioned case law. The correct course that ought to have been
adopted by the Magistrate at this stage was for the Magistrate to direct
the Accused, if he desired to examine himself, to place on record his
request in writing for such examination. On such a request being
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placed on record, the Trial Court ought to have considered the
application, and if the Accused was permitted to lead his evidence,
and if he sought production of any documents, he would have to make
out a case for such documents to be allowed in evidence, subject to
the rules of evidence. The application would be subject to dealing
with such objections as may be raised by the Complainant.
Instead of taking the above course, the Magistrate thereafter
allowed for three adjournments on 07.10.2024, 08.11.2024 and
06.12.2024 on which dates the Accused remained absent. These dates
were given for the Accused to lead his evidence, and ultimately on
06.12.2024, when the Accused once again sought time, stating that he
had to travel out of Goa for business, his application was rejected and
his evidence was closed.
15. In Soni Anilkumar Prahladbhai v. State of Gujarat, R/Special
Criminal Application No. 4888 of 2022, decided on 06.06.2022, the
High Court of Gujarat, whilst deciding on whether the Trial Court
was justified in refusing to accept the examination in chief of the
accused which was recorded without the accused having submitted a
written request to be examined as a witness under Section 315
Cr.P.C., held as follows:
"11. are perusal of the provision of Section 315 would indicate that
accused person can be competent witness, provided there is a written
permission or there is a written request made to the concerned court
at the instance of accused. Thus, in view of the provision of Section
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315 of the Cr.P.C., accused person can be a competent witness, but
before that, accused is required to request in writing to the concerned
Court.
12. Keeping in mind the aforesaid legal provision as well as the facts
of the present case, it appears that in the instant case, the petitioner
has filed an application at Exh.80 dated 26.10.2021 before the
concerned Magistrate, requesting to accept his examination-in-chief.
I have an occasion to go through the certified copy of the original
application at Exh.80. It appears that the petitioner by relying upon
the judgment in the case of Rakeshbhai Maganbhai arot (supra),
straightaway, sought to submit his examination-in-chief.
dmittedly, no written request made to the concerned court as
envisaged in Section 315 of the Cr.P.C. Keeping in mind this peculiar
and distinguishing fact and the mandate of Section 315 of the
Cr.P.C., in my considered opinion, both the courts below have
committed no mistake in not accepting the examination-in-chief of
the present petitioner."
I am fully in agreement with the view taken by the Gujarat High
Court on this issue, based on the reasons assigned by me above.
16. There is no doubt, that if the application of the Accused under
Section 315 was in fact given in writing, and the Accused had sought
adjournments on the three dates referred above, the Magistrate would
have been fully justified in closing the evidence. There has been a
gross delay on the part of the Accused in leading his own evidence
and such an order, considering the delay of almost six months since
the recording of the 313 Statement till the evidence was closed was
well justified.
17. However, considering that the procedure as was required under
Section 315 Cr.P.C. has not been followed, this would be a case that
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calls for interference in the supervisory jurisdiction of the Court
under Article 227 of the Constitution of India to correct the legal
error that has taken place in following the procedure as laid down by
law. Consequently, the impugned order closing the evidence of the
Accused would be required to be quashed and set aside. Since the
orders dated 06.12.2024 are now quashed and set aside, the
Magistrate shall follow the following procedure.
18. The Accused, if he so desires, shall file a written application
placing on record his desire to act as a witness in his own case in terms
of Clause (a) of the proviso to Sub-Section 1 of Section 315 Cr.P.C.
After this application is filed, the Magistrate shall permit the Accused
to lead his oral evidence by personally stepping into the witness box
and deposing in the matter. The Accused shall not be permitted to
produce any documentary evidence unless he justifies the production
of such evidence and specifically applies for the same during the
course of his evidence. If such an application is made, the Magistrate
shall take into consideration the line of cross-examination adopted by
the Accused after he was granted leave under Sub-Section 2 of
Section 145 of the Negotiable Instruments Act. The Magistrate shall
also take into consideration the fact that no reply was filed to the
notice under Section 138 issued by the Complainant prior to
instituting the complaint. After evidence of the Accused is
completed, if the Accused seeks to lead further evidence through any
witness, the Magistrate shall not grant the same mechanically but
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shall consider, on an application filed by the Accused to that effect,
shall decide the necessity of examining such witnesses after
considering the defence raised by the Accused during the cross
examination of the Complainant.
19. Consequently, I pass the following order:
a) The impugned orders dated 06.12.2024 are quashed and set
aside. The case shall stand relegated to the stage where the
Accused shall file his statement/application under Section
315 in the manner stated above. The Magistrate shall then
proceed to record the evidence of the Accused and follow
the procedure referred to in the preceding paragraphs.
b) Considering that the Petitioner/Accused has contributed to
a delay of almost one year since the completion of the
evidence of the Complainant, and on one count or another,
has been adjourning the matter for at least five hearings, the
cost deposited by him shall be paid to the Respondent.
c) The Registry shall directly remit the cost deposited under
order dated 09.01.2025 to the account of the Respondent,
details of which are given below:
Name: Gous Mohammed M. Shiraguppi
Bank: YES Bank Ltd.
Branch: Ponda Goa
Account No.: 035685800000788
IFSC Code: YESB0000356
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20. Rule is made absolute in the above terms.
21. Considering the trial is to be conducted as a summary trial, the
trial shall be completed within two months from the date of this order.
VALMIKI MENEZES, J.
4th August, 2025
