Madhya Pradesh High Court
Vaibhav Khare vs Kamal Kishore Arya on 27 August, 2020
Equivalent citations: AIRONLINE 2020 MP 997
Author: Vishnu Pratap Singh Chauhan
Bench: Vishnu Pratap Singh Chauhan
HIGH COURT OF MADHYA PRADESH : JABALPUR
S.B : HON.SHRIJUSTICE VISHNU PRATAP SINGH CHAUHAN
M.Cr.C. NO.10709/2020
Vaibhav Khare
Vs.
Kamal Kishore Arya
Shri S.P. Khare, learned counsel for the applicant.
Shri Manish Kumar Soni, learned counsel for the
respondent.
ORDER
(27/08/2020) The applicant has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 being aggrieved by the order dated 14/01/2020 passed by the Court of J.M.F.C., Bhopal in Regular Trial No.6347/2014 filed by the respondent against the applicant under Section 138 of Negotiable Instruments Act whereby learned trial Court has dismissed the application filed by the applicant under Section 145 of Negotiable Instruments Act for submitting affidavit of chief examination.
2. The facts giving rise to this petition, in short, are that the respondent who was complainant before the trial Court 2 submitted a complaint under Section 138 of Negotiable Instruments Act against the applicant stating therein that the applicant gave a cheque amounting to Rs.4,25,000/- in lieu of payment of goods and services availed by the applicant. When the respondent submitted that cheque in bank, the bank dishonoured that cheque and returned with an endorsement of 'insufficient amount' in the bank account of the applicant. After serving notice, when applicant failed to pay the amount within stipulated period, the respondent filed a complaint case against the applicant which was pending before the trial Court. The respondent, being a complainant, completed his evidence. The case was fixed for evidence of applicant. The applicant filed an application under Section 145 of N.I. Act for permitting him to file affidavit of chief examination (Annexure-P/2). The respondent filed reply of this application and prayed to dismiss that application and to direct the applicant to appear personally before the Court for adducing the evidence.
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3. Learned trial Court after hearing both the parties, passed impugned order dated 14/1/2020 and after relied upon the judgment of this Court in the case of Suresh Vs. Ashok, 2008(2) MPHT 58 and the judgment of Hon'ble Apex Court in the case of Mandvi Co-operative Bank Limited Vs. Nimesh B. Thakore, 2010 (2) MPHT 397 (SC) dismissed the application filed by the applicant who was accused therein.
4. Being aggrieved by that order, the applicant has filed this petition under Section 482 of Cr.P.C. on the ground that learned trial Court has wrongly interpreted the case-laws.
5. Learned counsel for the applicant submits that Hon'ble Apex Court in the case of Indian Bank Association and others Vs. Union of India and others, (2014) 5 SCC 590 after considering the case of Mandvi Co-operative Bank Limited (supra) held that witnesses of the accused and accused himself can file affidavit of chief examination. There is no bar in filing the affidavit. In these premises, he prays to allow this petition. 4
6. Having heard learned counsel for the parties.
7. Hon'ble Apex Court in the case of Mandvi Co- operative Bank Limited (supra) categorically held that right to give evidence on affidavit is not available to the accused. This Court in the case of Suresh (supra) after referring the provisions of Section 145 of Negotiable Instruments Act held that it is the complainant who can give evidence on affidavit not accused and set aside the order of the trial Court for permitting the accused to file affidavit under Section 145 of NI Act. Learned trial Court on the basis of above preposition of law, disallowed the applicant for giving evidence on affidavit.
8. Hon'ble Apex Court in the case of Indian Bank Association and others (supra) after discussing the judgment passed in the case of Mandvi Co-operative Bank Limited (supra), laid down the directions in para- 23 which are as follows :
"23. 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 5 Instruments Act, for which the following directions are being given :-
23.1. The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act 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.
23.2. The 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. The Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice on 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.
23.3). The 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. 23.4 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 251 Cr.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 re- calling a witness for cross-examination."
23.5. 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 the Court. The witnesses to the complaint and accused must be available for cross-examination 6 as and when there is direction to this effect by the Court."
(emphasis supplied) A bare perusal of the directions incorporated in the above para-23.5, it clearly reflects that trial Court has option of accepting affidavit of the witnesses of accused and if there is a clear direction of the trial Court for filing the affidavit to the accused, then accused is permitted to give evidence on affidavit.
9. No doubt, in the case in hand, the applicant being accused filed an application under Section 145 of N.I. Act seeking permission for filing of affidavit. The applicant did not directly submit affidavit. Now the Court was having an option whether to permit the applicant (accused) for giving the evidence on affidavit.
10. Hon'ble Apex Court in the case of Meters and Instruments Private Limited and another Vs. Kanchan Mehta, (2018) 1 SCC 560 held that trial under Section 138 of N.I. Act is of summary proceeding nature, it should be completed on the basis of day-today trial and 7 endeavour must be to conclude it within six months. Hon'ble Apex Court further discussed that evidence on affidavit can be received as evidence on all such of trials or proceedings.
11. Learned counsel for the respondent submits that the case is unnecessarily pending for defence evidence. The case was registered in the year 2014.
12. After hearing learned counsel for the parties, this Court is of the view that no doubt by virtue of Section 145(1) of Negotiable Instruments Act, it is only the complainant who is permitted to give evidence on affidavit and that affidavit can be considered during whole trial as evidence. Section 145(2) of Negotiable Instruments Act permits the parties to request the trial Court for calling the witnesses for cross-examination personally.
13. No doubt, Hon'ble Apex Court in the case of Mandvi Co-operative Bank Limited (supra), clearly held that accused cannot be permitted to file affidavit under Section 145(1) of Negotiable Instruments Act. 8 However, Hon'ble Apex Court in the case of Indian Bank Association and others (supra) after discussing the judgment passed in the case of Mandvi Co-operative Bank Limited (supra), permitted the accused and witnesses for giving evidence on affidavit, but it is the trial Court having option of accepting that affidavit instead of physically examining them in the Court. In these circumstances, learned trial Court was having option whether to permit the accused for giving the evidence on affidavit or not. However, learned trial Court without considering the judgment passed by Hon'ble Apex Court in the case of Indian Bank Association and others (supra), rejected the prayer of the applicant for giving evidence on affidavit on the basis of the judgment passed in the case of Mandvi Co-operative Bank Limited (supra).
14. This Court is of the view that the complaint case is pending since 2014 and the applicant has filed a detailed affidavit of evidence before the trial Court which can be used as examination-in-chief of the applicant. If the 9 respondent who is complainant therein wants to cross- examine the applicant, he can apply before the trial Court for calling the applicant for cross-examination. In case the applicant failed to appear before the trial Court for cross-examination, the Court may proceed further presuming that the applicant intentionally not appearing before the Court for cross-examination and the value of such affidavit can be considered at the time of final adjudication of the case.
15. In view of aforesaid, this petition is allowed. The impugned order dated 14/01/2020 is hereby set aside. The affidavit filed by the applicant as an evidence be considered as examination-in-chief of the applicant.
16. Interlocutory Application, if any, is pending, the same shall stand disposed of.
(Vishnu Pratap Singh Chauhan) Judge ts Digitally signed by TULSA SINGH Date: 2020.08.28 14:50:41 +05'30'