Bombay High Court
Vilas S/O Vishnuji Zade vs Shri. Shekhar S/O Shankarlalju Jaiswal on 23 January, 2025
2025:BHC-NAG:1172
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO. 976 OF 2024
PETITIONER : Vilas s/o Vishnuji Zade,
Aged about 39 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. A.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 is seeking relief of
issuing the appropriate writ, order, or direction, thereby calling for
the record and proceeding of SCC No. 217/2015 pending before
the learned Judicial Magistrate First Class, Ramtek; (2) to quash
and set aside the impugned order dated 26/06/2024 passed by the
learned Judicial Magistrate First Class, Ramtek, in SCC No.
217/2015 and allow the application filed by the petitioner, thereby
disallowing the evidence on affidavit of the respondent.
6. The facts which give rise to the petition are as under:
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 vide SCC No. 217/2015 before the
Judicial Magistrate First Class, Ramtek. After recording the
statement under Section 313 of Cr.P.C., the respondent/accused
adduced his evidence by filing an affidavit, which is not permitted
under Section 145 of the N.I. Act. Therefore, the petitioner had
filed an application below Exhibit No. 67 for disallowing the
evidence on affidavit of the accused, which is rejected, and hence
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this petition.
7. Heard learned counsel for the petitioner, who
submitted that in view of Section 145 of the N.I. Act, only the
complainant is permitted to adduce his evidence on affidavit.
Section 145(1) of the N.I. Act nowhere states that or mentions the
evidence of the accused, and therefore, in view of Section 145(1)
of the N.I. Act, the accused is not permitted to adduce his evidence
on affidavit.
8. In support of his submissions, learned counsel for the
petitioner placed reliance on the decision of Viral Enterprises vs.
State of Maharashtra and another [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 submitted that the
question arises before the Hon'ble Apex Court whether the
provision of Section 145 of the Act as amended by the N.I. Act is
applicable to the complaints under Section 138 of the N.I. Act
pending of the date on which the amendment came in force and
whether Section 145 of the N.I. Act permits the accused to adduce
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evidence on affidavit. While answering this question, the Hon'ble
Apex Court has dealt with the provision of Sections 143 to 147
and observed that the Sections 143 to 147 were designed
especially to lay down a procedure for a trial of dishonoured
cheque cases with the sole object that the trial of those cases
should follow a course even swifter than a summary trial and once
it is seen that even the special procedure failed to effectively and
expeditiously handle the vast multitude of cases coming to the
Court, the claim of the accused that on being summoned under
Section 145(2), the complainant or any of his witnesses whose
evidence is given on affidavit must be made to depose in
examination-in-chief all over again plainly appears to be a demand
for meaningless duplication, apparently aimed at delaying the
trial.
10. In para-32, it is observed that on a bare reading of
Sections 142 and 143 of the N.I. Act, 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 to 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
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omission by the legislature that it could fill up without difficulty.
Even 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'.
Though the legislature in their wisdom did not deem it proper to
incorporate the word accused' with the 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 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,
and it is held that Section 145(1) gives the right to the
complainant to give evidence on affidavit, but no such right is
available to the accused.
11. It is apparent that the learned trial Court has ignored
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the provision as well as ignored the law settled by the Hon'ble
Apex Court and rejected the application without assigning the
reason, and therefore, the writ petition deserves to be allowed.
Accordingly, I proceed to pass the following order.
a] The writ petition No. 976/2024 is allowed.
b] The application filed below Exhibit No. 67 for
disallowing the evidence of the accused on affidavit is
hereby allowed.
12. 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: 06/02/2025 16:48:19
