Bombay High Court
Smt. Shakuntalabi Wd/O Vishnuji Zade vs Shri. Shekhar S/O Shankarlalji Jaiswal on 23 January, 2025
2025:BHC-NAG:1199
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO. 990 OF 2024
PETITIONER : Smt. Shakuntalabai wd/o Vishnuji Zade,
Aged about 56 years, Occu: Agriculturist,
R/o Amdi, Tahsil - Parseoni, District
Nagpur.
VERSUS
RESPONDENT : Shri Shekhar s/o Shankarlalji Jaiswal,
Aged about 50 years, Occu: Business,
R/o Plot No. 1272, Deshpande Layout,
Nagpur, District Nagpur.
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Mr. S.K. Neware, counsel for petitioner.
None for the respondent.
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CORAM : URMILA JOSHI-PHALKE, J.
DATE : 23/01/2025
ORAL JUDGMENT :
1. Heard.
2. Though respondent is served, none appeared on
behalf of the respondent.
3. Rule.
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4. Rule made returnable forthwith. Heard finally by
consent of learned counsel Mr. A.K. Neware for the petitioner.
5. By this writ petition, the petitioner has challenged the
order passed by the Judicial Magistrate First Class, Ramtek,
rejecting the application of the present petitioner, who is the
original complainant, for disallowing the evidence on affidavit
filed by the accused.
6. The petitioner had filed a criminal complaint under
Section 138 of the Negotiable Instruments Act, 1881 ((hereinafter
referred to `N.I. Act') against the respondent bearing S.C.C No.
293/2015 before the Judicial Magistrate First Class, Ramtek. After
recording the statement under Section 313 of Cr.P.C., the
respondent had made a statement that he wants to adduce
evidence in his defence, and he filed an affidavit of examination-
in-chief, and therefore, the present petitioner had filed an
application for disallowing the evidence on affidavit of the
accused, which is not permissible under Section 145 of the N.I.
Act. However, the learned Judicial Magistrate First Class, Ramtek,
without assigning any reason, rejected the application, and hence
this petition.
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7. Learned counsel for the petitioner submitted that in
view of Section 135 of the N.I. Act, especially Sub-Section 1, the
complainant has right to give evidence on affidavit, but no such
right is available to the accused.
8. He submitted that neither Section 296 (2) of Cr.P.C.
nor the decision in the case of State of Punjab vs. Naib Din,
[(2001) 8 SCC 578 ] is helpful to the present respondent to
adduce the evidence on affidavit. He submitted that this aspect is
dealt with by this Court in the judgment of Viral Enterprises vs.
State of Maharashtra [2024 ALL MR Cr.278] as well as M/s
Mandvi Cooperative Bank Limited v. Nimesh B. Thakore [(2010) 3
SCC 83].
9. Learned counsel for the petitioner further submitted
that, wherein this aspect is extensively dealt by this Court, as well
as the Hon'ble Apex Court, and it is held that 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. But 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)
of the N.I. Act, 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 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 evidence of the complainant and
the accused in a case of a dishonored cheque. The case of the
complainant in a complaint under Section 138 of the N.I. Act
would be based largely on documentary evidence.
10. 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
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documentary; in all likelihood, the defence would lead other kinds
of evidence 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 a dishonored 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.
11. Thus, in view of the decision of the Hon'ble Apex
Court, it is specifically held that Section 145(1) of the N.I. Act
gives rights to the complainant, but no such right is available to
the accused, and in the light of the said decision of the Apex Court,
the learned Judicial Magistrate First Class, Ramtek, ought to have
allowed the application, but he has not considered the import of
Section 145(1) of the N.I. Act, and without assigning the reason,
rejected the application, which is erroneous.
12. In view of the observations of the Hon'ble Apex Court,
the application ought to have allowed by learned Judicial
Magistrate First Class, Ramtek, and therefore, the order passed by
the learned Magistrate deserves to be quashed and set aside. In
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view of that, I proceed to pass the following order.
a] The writ petition No. 990/2024 is allowed subject to
the prayer clause-II.
b] The application filed by the petitioner, Exhibit No. 67,
is hereby allowed.
c] The order passed by the learned Judicial Magistrate
First Class, Ramtek, rejecting the application is hereby
quashed and set aside.
13. Rule is made absolute in the above terms. No order as
to costs.
[URMILA JOSHI-PHALKE, J.]
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Signed by: Mr. R.K. NANDURKAR
Designation: PA To Honourable Judge
Date: 07/02/2025 13:53:55
