SECTION-138 of NI Act-WHETHER accused can FILE AFFIDAVIT
EVIDENCE as A witness?
The process of trial finds procedural regulations
in Code of Criminal Procedure (Cr.P.C) and after amendment, in Bhartiya Nyay Surakasha Sanhita (BNSS).
In the Negotiable Instruments Act 1881(In short “NI Act”), section 138 was made
part of the Act, in 1988, as cheque bouncing instances were on rise and
remedial measures to infuse faith in cheque transaction cases were imperative
and hence punitive measures is also prescribed u/s 138-142 of the NI Act. The
Act has periodically undergone several changes with a view to reinforce the
sanity and restore the faith of common people in cheque transactions. Several
sections were included thereafter i.e 143-147 are added in the Act view of
exigencies. The complaints under Section 138 of the NI Act was treated as
summary case, as the cross examination of complainant was not envisaged,
however, subsequently, in terms of Section 145, more particularly, section 145 (2),
the Magistrate is made empowered to treat the complaint under the Act as summon
case, if prima facie defence is available to the accused. In that event, the summary trial is to be treated as summon trial cases. Therefore, the
complaints u/s 138 of NI Act, essentially are being tried as summon cases and not
as summary cases.
Let us now come to another dimension to it i.e
mode and manner of leading evidence. In Cr.P.C, as per section 315, the accused
cannot be compelled to stand as witness, unless, it is sought for by the
accused himself. In F.I.R case, the oral examination in chief is conducted,
pursuant to the statement made before Police u/s 161 of Cr.PC and under the
relevant provisions of BNSS, as the case may be. The departure, however is clear u/s 138-145 of NI Act. It is
of significance to point out that the examination of chief of complainant is
recorded as per affidavit filed by the complainant and even when the complaint
is treated as summons case, after
application filed u/s 145(2) filed by the accused for seeking cross examination
of complainant witness, there is no need to file separate affidavit or
examination in chief and for cross examination of complainant witness. The
affidavit in evidence, filed earlier is adopted as a practice and that follows
cross examination.
A situation may be pondered over, though. What, if
the accused seeks to examine himself as a defence witness and also seeks to
file affidavit evidence.? Whether, it is permitted u/s 138 of NI Act complaint?
Whether, the accused is permitted to file affidavit evidence, in a manner the
complainant does? In the present write up the endeavour shall be to advert on
these issues with a view to find answer.
The following judgments in this regard may have to
be perused and its tenor and finding shall have to be analysed for arriving at
a conclusion:
(1) SBI Global Factors
Limited vs The State Of Maharashtra And Ors AIRONLINE 2021 BOM 772
In the aforesaid judgment, reliance was
placed on the Hon'ble Supreme Court in the case of Mandvi Co-op. Bank Ltd. Vs.
Nimesh B. Thakore reported in Manu/SC/0016/2010 : AIR 2010 SC 1402 :
(2010) 3 SCC 83, in para Nos.30, 31 and 32 has held as under :
"30. Coming now to the last question
with regard to the right of the accused to give his evidence, like the
complainant, on affidavit, the High Court has held that subject to the
provisions of sections 315 and 316 of the Code of Criminal Procedure the
accused can also give his evidence on affidavit. The High Court was fully
conscious that section 145(1) does not provide for the accused to give his
evidence, like the complainant, on affidavit. But the High Court argued that
there was no express bar in law against the accused giving his evidence on
affidavit and more importantly providing a similar right to the accused would
be in furtherance of the legislative intent to make the trial process swifter.
In paragraph 29 of the judgment, the High Court observed as follows:
"It is true that section 145(1) confers
a right on the complainant to give evidence on affidavit. It does not speak of similar
right being conferred on the accused. The Legislature in their wisdom may not
have thought it proper to incorporate a word `accused' with the word
`complainant' in sub-section (1) of section 145 in view of the immunity
conferred on the accused from being compelled to be a witness against himself
under Article 20(3) of the Constitution of India...."
In
paragraph 31 of the judgment it observed:
“.... Merely because, section 145(1) does not
expressly permit the accused to do so, does not mean that the Magistrate cannot
allow the accused to give his evidence on affidavit by applying the same
analogy unless there is just and reasonable ground to refuse such permission.
There is no express bar on the accused to give evidence on affidavit either in
the Act or in the Code..... I find no justified reason to refuse permission to
the accused to give his evidence on affidavit subject to the provisions
contained in sections 315 and 316 of the Code."
What therefore emerges in the above context
is that even a cursory perusal of Section 143-145 of NI Act reflect, that
whereas, the legislature has provided for the complainant to give his evidence
on affidavit, but no corresponding provision is carved out for the accused to
do so. Therefore, any inference, that non- mentioning of the accused along with
the complainant in sub-section (1) of section 145 for the purpose of entitlement
to file evidence affidavit could be merely an omission by the legislature shall
be far -fetched. What therefore follows is that if the legislature has not
deemed it proper to incorporate the word `accused' with the word `complainant'
in section 145(1), the same cannot be read as if even the “accused” shall be
deemed to be part of it. Thus, what is explicit can only be given effect to. The
case of the complainant in a complaint under section 138 of the Act shall be based
on documentary evidence. The accused, it is observed, more oftenly, does not
opt even to lead any defence evidence and let the prosecution stand or fall on
its own evidence. Even otherwise, in case, the accused opted to lead defence evidence,
the nature of its evidence may not be necessarily documentary and it may be
such other evidence with a view to rebut the presumption that the issuance of
the cheque was not in the discharge of any debt or liability. Hence, the basic
difference between the nature of the complainant's evidence and the evidence of
the accused in a case of dishonoured cheque has to be contextually understood.
The Bombay High Court in SBI Global Factors Limited
(Supra) has held in view of above
settled position of law, that accused/respondent cannot be permitted to file an
Affidavit-of-Evidence in-lieu of Examination-in-Chief. The evidence of accused
i.e. Affidavit of Evidence in lieu of Examination-in-Chief was thus discarded
from record.
2. That
the Karnataka High Court in a matter captioned as MRS. ZAHEDA INAMDHAR Vs DR. FATIMA HASSINA SAYEEDHA WRIT PETITION No.3519 OF 2024 (GM – RES)
after taking note of Mandvi
Co-op. Bank Ltd. (Supra) has held on similar line.
3. That
the Delhi High Court in a matter captioned as MAA TARINI INDUSTRIES LTD. &
ANR. Versus PEC LIMITED CRL.M.C. 254/2020 after following Mandvi Co-Operative
(Supra) has held as under:
18. The provisions of Sections 142 to 147 lay
down a Special Code for the trial of offences under the Chapter XVII of the
N.I. Act. While considering the scope and ambit of the amended provisions of
the Act, the Supreme Court in Mandvi Co.
Op. Bank Ltd. v. Nimesh B. Thakore , AIR 2010 SC 1402, has held that the
provisions of Sections 143, 144, 145 and 147 expressly depart from and override
the provisions of the Cr.PC, the main body of adjective law for criminal
trials. The Supreme Court has further held as under:-
"17. It is not difficult to see that
sections 142 to 147 lay down a kind of a special code for the trial of offences
under Chapter XVII of the Negotiable Instruments Act and sections 143 to 147
were inserted in the Act by the Negotiable Instruments (Amendment and
Miscellaneous Provisions) Act, 2002 to do away with all the stages and
processes in a regular criminal trial that normally cause inordinate delay in
its conclusion and to make the trial procedure as expeditious as possible
without in any way compromising on the right of the accused for a fair
trial."
The aforesaid discussion shall categorically
and discerningly reflect that in cheque bouncing cases u/s 138 of Negotiable
Instruments Act, there has been no provision even u/s 143-145 of the said Act
that accused shall be entitled to file evidence affidavit, whereas the said
prescription is clearly made out for the complainant and the complainant can be
cross examined on the basis of their evidence affidavit and documents, in a
rebuttal by the accused in order to shift the onus back on complainant and to
shift the onus u/s 139 of NI Act , in case the accused succeeds in raising
tangible rebuttal. However, there is no mechanism in law for the accused in the
cases u/s 138 of Negotiable Instruments Act to file evidence affidavit, unlike
the complainant. Moreover, even if Section 315 of Cr.PC is taken note of, the
accused can lead his evidence as defence witness, if the accused opted to do
so. The accused cannot be compelled to do so. In any case, after Mandvi Co-operative (Supra) judgment
rendered by the hon’ble Supreme Court, the issue is well settled i.e the
accused cannot file evidence affidavit by way of defence evidence in complaints
u/s 138 of Negotiable Instruments Act and rebuttal option is available to the
accused by way of cross examination of complainant witness and even through
defence witness, other than the accused himself, unless, the accused himself
also wanted to be examined. The inference therefore is that no affidavit by way
of evidence can be filed by the accused in such cases, having been clearly
excluded by implication in terms of Section 145 of Negotiable Instruments Act,
wherein, the filing of affidavit relates to, by the complainant only.
------
Anil
K Khaware
Founder & Senior Associate
Societylawandjustice.com
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