Case Note & Summary
The petitioner, Afzal Pasha, was the accused in a complaint filed under Section 138 of the Negotiable Instruments Act, 1881, pending before the XIV Additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bangalore in C.C.No.50387/2014. At the stage when the case was set down for the evidence of the accused, he filed an application under Section 145(2) of the NI Act seeking permission to file an affidavit in lieu of oral evidence. The trial court rejected the application on the ground that such a course was not permissible. Aggrieved, the accused filed a criminal petition under Section 482 of the Code of Criminal Procedure, 1973 before the High Court of Karnataka. The High Court heard the matter and reserved judgment on 05.08.2016, delivering the order on 09.08.2016. The petitioner's counsel relied on the Supreme Court's decision in Indian Bank Association v. Union of India, (2014)5 SCC 590, which interpreted Section 145 of the NI Act to allow the accused to give evidence on affidavit. The respondent's counsel relied on Mandvi Cooperative Bank Limited v. Nimesh B. Thakore, (2010)3 SCC 83, where the Supreme Court had held that Section 145(1) conferred a right on the complainant to give evidence on affidavit but no similar right was conferred on the accused. However, the High Court noted that in the Indian Bank Association case, the Supreme Court had clarified that Section 145(2) permits the accused to give evidence on affidavit, and the trial court's rejection was erroneous. The High Court allowed the petition, set aside the trial court's order, and directed the trial court to accept the affidavit of the accused in lieu of oral evidence and proceed with the case.
Headnote
A) Criminal Procedure - Negotiable Instruments Act - Section 145(2) - Evidence on Affidavit by Accused - The accused in a complaint under Section 138 of the NI Act sought to file an affidavit in lieu of oral evidence under Section 145(2). The trial court rejected the application holding it was not permissible. The High Court, relying on Indian Bank Association v. Union of India, (2014)5 SCC 590, held that Section 145(2) permits the accused to give evidence on affidavit, and the trial court's order was set aside. (Paras 2-5)
Issue of Consideration
Whether the accused in a complaint under Section 138 of the Negotiable Instruments Act, 1881 is entitled to file an affidavit in lieu of oral evidence under Section 145(2) of the said Act.
Final Decision
The High Court allowed the petition, set aside the trial court's order dated 05.08.2016, and directed the trial court to accept the affidavit of the accused in lieu of oral evidence and proceed with the case in C.C.No.50387/2014.
Law Points
- Section 145(2) of the Negotiable Instruments Act
- 1881 permits the accused to give evidence on affidavit
- the provision is not limited to the complainant
- the trial court's rejection was erroneous.
Case Details
2016 LawText (KAR) (08) 17
Criminal Petition No.1684 of 2016
Murthy D. Naik, M. Ramakrishna
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Nature of Litigation
Criminal petition under Section 482 CrPC challenging the trial court's rejection of an application under Section 145(2) of the NI Act to file an affidavit in lieu of oral evidence.
Remedy Sought
The petitioner (accused) sought a direction to the trial court to accept his affidavit in lieu of oral evidence and proceed with the case.
Filing Reason
The trial court rejected the accused's application under Section 145(2) of the NI Act to file an affidavit in lieu of oral evidence, holding it was not permissible.
Previous Decisions
The trial court rejected the application; the present petition challenges that order.
Issues
Whether the accused in a complaint under Section 138 of the NI Act is entitled to file an affidavit in lieu of oral evidence under Section 145(2) of the NI Act.
Submissions/Arguments
Petitioner's counsel argued that Section 145 of the NI Act, as interpreted by the Supreme Court in Indian Bank Association v. Union of India, permits the accused to give evidence on affidavit.
Respondent's counsel argued that the Supreme Court in Mandvi Cooperative Bank Limited v. Nimesh B. Thakore held that Section 145(1) confers a right only on the complainant, not the accused, to give evidence on affidavit.
Ratio Decidendi
Section 145(2) of the Negotiable Instruments Act, 1881 permits the accused to give evidence on affidavit; the trial court's rejection of the accused's application was erroneous and set aside.
Judgment Excerpts
The petition is filed by the accused, against whom a complaint is filed before the court below alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
The trial court having rejected the application on the ground that the same is not permissible, the present petition is filed.
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.
Procedural History
The complaint was filed before the XIV Additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bangalore in C.C.No.50387/2014. At the stage of the accused's evidence, the accused filed an application under Section 145(2) of the NI Act to file an affidavit in lieu of oral evidence. The trial court rejected the application. The accused then filed the present criminal petition under Section 482 CrPC before the High Court of Karnataka. The High Court heard the matter on 05.08.2016 and delivered the order on 09.08.2016.
Acts & Sections
- Negotiable Instruments Act, 1881: 138, 145, 145(2)
- Code of Criminal Procedure, 1973: 482
- Constitution of India: Article 20(3)
