Case Note & Summary
The petitioner, as complainant in a cheque dishonour case under Section 138 of the Negotiable Instruments Act, 1881, sought quashing of the proceeding recording the accused's evidence by affidavit and the rejection of her application under Section 311 Cr.P.C. for further cross-examination. The complaint arose from a dishonoured cheque, leading to proceedings pending before the 22nd Additional Chief Metropolitan Magistrate, Bengaluru. The complainant was cross-examined on 16-11-2018 and 18-02-2019. On 25-03-2019, the accused filed an affidavit in lieu of examination-in-chief. Subsequently, on 28-06-2023, when the accused was offered for cross-examination, the complainant's counsel was absent, and cross-examination was recorded as nil. The complainant thereafter filed an application under Section 311 Cr.P.C. seeking further cross-examination, which was rejected by order dated 13-12-2023. In the writ petition, the complainant raised two primary issues: first, whether the trial court could legally permit the accused to give evidence by affidavit, and second, whether the rejection of the application for further cross-examination was tenable. The court examined Section 145 of the Negotiable Instruments Act, which explicitly allows only the complainant to give evidence on affidavit, and noted that the provision does not confer the same right on the accused. The court also considered a coordinate bench decision, Afzal Pasha v. Mohamed Ameerjan (ILR 2016 KAR 4145), which had previously interpreted the provision as permitting affidavits by the accused. The judgment excerpt ends before a final conclusion is reached, leaving the ultimate decision unstated in the provided text.
Issue of Consideration
Whether the act of the concerned Court in permitting filing of an affidavit in lieu of examination-in-chief by the accused is sustainable? and Whether the rejection of the application filed under Section 311 of the Cr.P.C., is tenable in law?
Law Points
- Section 145 of the Negotiable Instruments Act
- 1881 only permits complainant to give evidence on affidavit
- not accused
- Accused cannot be permitted to file affidavit in lieu of examination-in-chief
- Recording of evidence must be in accordance with Code of Criminal Procedure
- 1973
- Rejection of Section 311 Cr.P.C. application may be erroneous when cross-examination was not conducted due to absence
Case Details
2024 LawText (KAR) (07) 42
Writ Petition No. 3519 of 2024 (GM – RES)
Sri P.P. Hegde, Senior Advocate for Smt. Monisha N.S., Advocate; Sri M.N. Umesh, Advocate for respondent
Dr. Fatima Hassina Sayeedha
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Nature of Litigation
The writ petition challenges the proceedings in a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881, specifically the recording of the accused's evidence by affidavit and the rejection of the application for further cross-examination of the accused under Section 311 of the Code of Criminal Procedure, 1973.
Remedy Sought
The petitioner sought quashing of the proceeding recording the accused's evidence by affidavit and to direct the trial court to record the accused's evidence in accordance with law, as well as quashing of the order dated 13-12-2023 which rejected the application under Section 311 Cr.P.C.
Filing Reason
The petitioner, being the complainant, was aggrieved by the trial court permitting the accused to file an affidavit in lieu of examination-in-chief, which she contended was illegal, and by the rejection of her application for further cross-examination of the accused.
Previous Decisions
The case was pending before the 22nd Additional Chief Metropolitan Magistrate, Bengaluru. The court had permitted the accused to file an affidavit as examination-in-chief. The complainant's application under Section 311 Cr.P.C. for further cross-examination of the accused was rejected by the order dated 13-12-2023. No higher court's decision prior to this writ petition is mentioned.
Issues
Whether the act of the concerned Court in permitting filing of an affidavit in lieu of examination-in-chief by the accused is sustainable?
Whether the rejection of the application filed under Section 311 of the Cr.P.C., is tenable in law?
Submissions/Arguments
Petitioner argued that permitting the accused to file an affidavit in lieu of examination-in-chief is illegal and not permissible under law; that Section 145 of the Negotiable Instruments Act, 1881 only allows the complainant to give evidence on affidavit; and that the trial court's rejection of the application under Section 311 Cr.P.C. for further cross-examination is erroneous.
Respondent argued that there is no express bar against the accused filing an affidavit for examination-in-chief; that the trial court had the discretion to allow it; and that since the complainant failed to cross-examine when offered, the application for recall under Section 311 Cr.P.C. was rightly rejected.
Judgment Excerpts
Section 145 of the Act confers a right on the complainant to give affidavit evidence. It stops at that. It does not confer the same right on the accused.
The issue in the lis does not pertain to the merit of the claim of the complainant or the defence of the accused.
The petitioner is before this Court calling in question proceedings of recording of evidence of the accused by way of an affidavit in C.C.No.27337 of 2027 pending before the 22nd Additional Chief Metropolitan Magistrate, Bengalore arising out of a complaint filed under Section 200 of the Cr.P.C., alleging offences punishable under Section 138 of the Negotiable Instruments Act, 1881.
Procedural History
The respondent issued a cheque in favour of the petitioner. The cheque was dishonoured upon presentation. The petitioner filed a complaint under Section 200 Cr.P.C. read with Section 138 of the Negotiable Instruments Act, 1881 before the 22nd Additional Chief Metropolitan Magistrate, Bengaluru, registered as C.C. No. 27337/2017. On 16-11-2018, the petitioner was cross-examined. On 18-02-2019, the petitioner was further cross-examined. On 25-03-2019, the accused filed an affidavit in lieu of examination-in-chief. On 28-06-2023, the accused was offered for cross-examination, but the complainant's counsel remained absent, and cross-examination was recorded as nil. The petitioner filed an application under Section 311 Cr.P.C. seeking further cross-examination of the accused. On 13-12-2023, the trial court passed an order rejecting the application under Section 311 Cr.P.C. The petitioner filed the present writ petition challenging the proceeding recording the accused's evidence by affidavit and the order dated 13-12-2023.
Acts & Sections
- Negotiable Instruments Act, 1881: 138, 145
- Code of Criminal Procedure, 1973: 200, 311, 482
- Constitution of India, 1950: 226, 227
