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3. The court below adjudicated the application Exh.128 and rejected the same by placing strong reliance on the decision of the Supreme Court in the case of M/s.Mandvi Cooperative Bank Limited v. Nimesh B.Thakore, reported in (2010)3 SCC 83.

4. Being dissatisfied with the order passed by the trial court below application Exh.128, the applicant - original accused is here before this Court with this application.

5. Mr.Thakur, the learned counsel appearing for the applicant, vehemently submitted that the trial court committed a serious error in passing the impugned order. According to the learned counsel, the decision of the Supreme Court in the case of M/s.Mandvi Cooperative Bank Limited (supra) is directly in conflict with the later decision of the Supreme Court in the case of Indian Bank Association and others v. Union of India and others, reported in (2014)5 SCC 590. He would submit that in view of the recent pronouncement of the Supreme Court in the case of Indian Bank Association (supra), the accused has a right to lead his evidence on affidavit. In such circumstances, the learned counsel prays that there being merit in this application, the same may be allowed and the impugned order be quashed. The learned counsel prays that the application Exh.128 filed before the trial court may be allowed.

6. On the other hand, this application has been vehemently opposed by Mr.Kumar Trivedi, the learned counsel appearing R/SCR.A/3367/2018 CAVJUDGMENT for the respondent no.2 - original complainant. Mr.Trivedi would submit that no error, not to speak of any error of law, could be said to have been committed by the trial court in rejecting the application Exh.128. Mr.Trivedi would submit that the decision of the Supreme Court in the case of M/s.Mandvi Cooperative Bank Limited (supra) is very clear. The Supreme Court has laid down the law that Section 145(1) of the Act confers right on the complainant to give evidence on affidavit, but there is no similar right conferred on the accused. In such circumstances referred to above, Mr.Trivedi prays that there being no merit in this application, the same may be rejected.

3. The learned counsel for the petitioner places reliance on the language of Section 145 of the NI Act to contend that the trial court has not taken into consideration the intent of the provision, which has been interpreted by the Apex Court in the case of Indian Bank Association v. Union of India, (2014)5 SCC 590.

4. On the other hand, the learned counsel for the respondent would submit that the trial court has rightly rejected the R/SCR.A/3367/2018 CAVJUDGMENT application in the light of the judgment of the Supreme Court in the case of Mandvi Cooperative Bank limited v. Nimesh B. Thakore, (2010)3 SCC 83. In the said case, the apex court had not agreed with the High Court which had held that Section 145(1) did confer a right on the complainant to give evidence on affidavit. But there was no similar right conferred on the accused. That the legislature apparently had posited, that the immunity conferred on the accused from being compelled to be a witness against himself under Article 20(3) of the Constitution of India, did not warrant the incorporation of the word accused with the word complainant in sub-section 145 of the NI Act. The High Court had gone on to hold that, merely because, Section 145 did not expressly permit the accused to give evidence on affidavit, it did not mean that the Magistrate could not allow the accused to do so by applying the same analogy, unless there was just and reasonable ground to refuse such permission. It was held that there was no express bar on the accused to give evidence on affidavit, either in the NI Act or the Code of Criminal Procedure, 1973 (Hereinafter referred to as the CrPC , for brevity). The accused was permitted to tender evidence by way of affidavit.

The Apex Court in Mandvi Cooperative Bank Limited, (supra), has not examined the matter in the above perspective.

On the other hand, the view taken and the directions issued in a more recent decision of the Apex Court, in the case of Indian Bank Association (supra) does contemplate evidence by affidavit by the accused. The relevant portion is extracted hereunder:

"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 Act, for which the following directions are being given:-