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petitioner was co-operating with the trial of the case and that the petitioner himself was examined as DW-1 on affidavit filed in lieu of examination in chief and he was cross-examined by the defence without there being any objection in examination in chief on affidavit filed by the petitioner.

3. It is pointed out that it is only due to the mistake of the counsel for the petitioner the petitioner was examined in chief on affidavit and the learned Magistrate permitted the petitioner to be examined as a witness under Section 315 of the Code of Criminal Procedure and he was thoroughly cross-examined by defence without there being any objection. When the matter was listed for hearing, learned counsel appearing for the complainant submitted that the evidence of DW-1 cannot be considered as he was examined in chief on affidavit and it is impermissible under Section 145(2) of the Negotiable Instruments Act. Immediately on noting the said mistake committed by his counsel, the petitioner through counsel had filed Annexure-IV application on 28.3.2017 as Crl.M.P.No.25 of 2017 before the learned Magistrate seeking permission to examine the petitioner as witness and record his evidence afresh as his examination in chief is bad in law in the light of the decision reported in Mandvi Co-operative Crl.M.C.No.3092/17 ::3:: 

Crl.M.C.No.3092/17                      ::4::




               (2)    The Court may, if it thinks fit, and shall, on the
application of the prosecution or the accused, summon and examine any person given evidence on affidavit as to the facts contained therein."

7. The Apex Court has clearly and categorically held in the judgment in Mandvi Co-op. Bank Ltd. v. Nimesh B.Thakore reported in 2010 (3) SCC 83 = 2010 (2) SCC (Cri.) 1 = 2010 (1) KLT 321 (SC) that the right available to a complainant to adduce evidence by affidavit in lieu of chief examination is not available to an accused in view of the specific provision engrafted in Section 145(1) of the Negotiable Instruments Act. A similar view was earlier taken by the Madras High Court in the judgment in Thanaiya v. Balasamy Nadar reported in (2005) KHC 699 = 2005 (2) KLT 643. The legal principles laid down by the Apex Court in Mandvi Co-op. Bank Ltd.' case (supra) have been reiterated by this Court in the case in Tomy.T.J. v. State of Kerala and another reported in 2017(2) KHC 841.