Case Note & Summary
The High Court of Bombay at Goa heard two criminal writ petitions filed by Conroy J.F. De Melo, the accused in two complaints under Section 138 of the Negotiable Instruments Act, 1881, filed by M/s Civilco Engineers & Associates through its partner Gaus Mohammed Shiraguppi. The petitions challenged orders dated 06.12.2024 passed by the Judicial Magistrate First Class, A-Court, Ponda in Criminal Case Nos. OA/30/2020 and OA/925/2019, by which the Magistrate dismissed the accused's application and refused leave to lead defence evidence. The High Court, with consent of parties, disposed of the petitions finally at the admission stage. The underlying disputes pertained to two dishonoured cheques: cheque dated 17.10.2019 for Rs. 5,00,000/- in Criminal Case No. OA/30/2020 and cheque dated 30.09.2019 for Rs. 20,00,000/- in Criminal Case No. OA/925/2019, both signed by the accused in favour of the complainant. After the cheques were dishonoured, statutory notices were issued, but the accused did not reply, leading to the complaints. The Magistrate recorded the plea of the accused instead of following the summary procedure under Section 260 CrPC. The verification of the complaint on affidavit was treated as the complainant's evidence. The accused filed an application under Section 145(2) of the Negotiable Instruments Act seeking leave to cross-examine the complainant. The application cited no reasons other than that the matter was a commercial dispute. Despite judicial precedents requiring proper reasons, the Magistrate granted leave on 26.02.2024. In cross-examination, the complainant relied on an Agreement of Payment dated 18.09.2019, whose execution was not denied by the accused. The cross-examination did not challenge the agreement or its contents; the only suggestion was that the cheques were issued to facilitate a business deal and not for repayment of a friendly loan. The accused was absent on two dates fixed for recording his statement under Section 313 CrPC. On 04.09.2024, his statement was recorded virtually, wherein he admitted signing the Agreement of Payment and expressed desire to step into the witness box to lead defence evidence, relying on WhatsApp chats and telephonic recordings. The Magistrate did not record a written waiver under Section 315 CrPC and instead fixed the matter on 07.10.2024 for the accused to file an affidavit in evidence. The High Court identified two serious flaws: the absence of a written waiver under Section 315 CrPC before the accused could testify, and the direction to file an affidavit in lieu of examination-in-chief, which is not permissible under Sections 143 and 145 of the Negotiable Instruments Act for the accused. The Court referred to SBI Global Factors Ltd. v. State of Maharashtra and Mandvi Co-op Bank Ltd. v. Nimesh B. Thakore, and Indian Banks Association v. Union of India, which held that only the complainant can give evidence on affidavit in cheque bounce cases and that the accused's evidence cannot be equated with the complainant's evidence. The Court also noted that the leave to cross-examine was granted without proper reasons. The excerpt ends before the final operative order, but the Court's reasoning found the Magistrate's approach legally erroneous.
Headnote
A) Criminal Procedure - Summary Trial Procedure - Sections 260 CrPC and 143 NI Act - Magistrate should adopt summary procedure for cheque bounce cases - The High Court noted that the Magistrate did not proceed by the summary procedure provided under Section 260 CrPC and instead recorded the plea of the accused, leading to procedural complications. Held that summary procedure is the norm for Section 138 NI Act complaints. (Paras 4-5) B) Negotiable Instruments - Cross-Examination of Complainant - Section 145(2) NI Act - Application must state proper reasons; mere commercial dispute insufficient - The Magistrate granted leave to cross-examine the complainant on the sole ground that the matter was a commercial dispute, contrary to judicial precedents requiring reasons. The High Court observed this as a flaw. (Para 5) C) Criminal Procedure - Accused as Witness - Section 315 CrPC - Written waiver mandatory before accused testifies - The Magistrate directed the accused to lead evidence by affidavit without first obtaining a written request or waiver from the accused under clause (a) of the proviso to Section 315(1) CrPC. The Court held this was a serious flaw because an accused cannot be compelled to be a witness and must specifically waive the right in writing. (Paras 8-9) D) Negotiable Instruments - Defence Evidence by Affidavit - Sections 143 and 145 NI Act - Accused cannot file affidavit in lieu of examination-in-chief - Section 143 permits only the complainant to give evidence on affidavit; Section 145(2) permits examination of persons giving affidavit evidence but does not extend to the accused's defence evidence. The Court relied on Mandvi Co-op Bank and SBI Global Factors and held that an accused cannot lead evidence by affidavit. (Paras 10-12) E) Constitutional Law - Protection Against Self-Incrimination - Article 20(3) of the Constitution of India - Accused cannot be compelled as witness; waiver must be explicit - The Court referred to the immunity under Article 20(3) and the rationale that the accused cannot be compelled to give evidence against himself. The requirement of written waiver under Section 315 CrPC protects this constitutional guarantee. (Paras 9, 12)
Issue of Consideration
Whether the Magistrate erred in dismissing the accused's application and refusing leave to lead evidence; whether an accused in a Section 138 Negotiable Instruments Act case can lead defence evidence by affidavit; and whether the Magistrate was required to record a written waiver under Section 315 CrPC before permitting the accused to examine himself as a witness
Final Decision
The High Court found that the Magistrate erred in directing the accused to file an affidavit in lieu of examination-in-chief without recording a written waiver under Section 315 CrPC and contrary to Sections 143 and 145 of the Negotiable Instruments Act, which permit only the complainant to give evidence on affidavit. The Court also observed that leave to cross-examine was granted without proper reasons. The final operative order is not included in the provided judgment excerpt.
Law Points
- Accused cannot lead evidence by affidavit under Sections 143 and 145 of the Negotiable Instruments Act
- 1881
- written waiver under clause (a) of proviso to Section 315(1) CrPC is mandatory before accused testifies
- leave to cross-examine complainant under Section 145(2) NI Act must be supported by reasons
- summary procedure under Section 260 CrPC should be followed in cheque bounce cases
