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Punjab and Haryana High Court while dealing with the present case answered the question of whether an accused facing a trial under provisions of Section 138 of NI Act can be allowed to tender evidence on affidavit wherein it held stating negative.
The trial court in the present case denied the request of the petitioner (accused) to tender evidence relying on the judgment of Mandvi Cooperative Bank Limited v. Nimesh B. Thakore, (2010) 3 SCC 83.
The petitioner relied on the judgment of the Indian Bank Association and others vs. Union of India and others, (2014) 5 SCC 590 wherein it was observed that a complaint under provisions of NI Act may be allowed to tender evidence of affidavit unless there is a justifiable reason for such a refusal. It was argued that since most of the statement to be produced by the accused would place reliance on documentary evidence, which cannot be deposed in an oral statement; allowing the accused to tender evidence would not prejudice the trial in any way and hence the trial court’s holding is not sustainable.
It is a pertinent headnote to be highlighted is that Gujrat High Court also upheld the right of accused to tender evidence in such cases in light of the Indian Bank Association and Ors.
It was held by the Apex Court in Mandvi Cooperative Bank Limited v. Nimesh B. Thakore that
“…if the legislature in their wisdom did not think “it proper to incorporate a word ‘accused’ with the word ‘complainant’ in section 145(1)……”, it was not open to the High Court to fill up the self perceived blank. Secondly, the High Court was in error in drawing an analogy between the evidences of the complainant and the accused in a case of dishonoured cheque. The case of the complainant in a complaint under section 138 of the Act would be based largely on documentary evidence.
The accused, on the other hand, in a large number of cases, may not lead any evidence at all and let the prosecution stand or fall on its own evidence. In case the defence does lead any evidence, the nature of its evidence may not be necessarily documentary; in all likelihood the defence would lead other kinds of evidences to rebut the presumption that the issuance of the cheque was not in the discharge of any debt or liability. This is the basic difference between the nature of the complainant’s evidence and the evidence of the accused in a case of dishonoured cheque.”
Justice JB Paridawala held stating, “…the petitioner being an accused, who is facing trial in complaint under the provisions of Negotiable Instruments Act, is not competent to tender his evidence through affidavit and learned trial Court has not committed any error while declining permission to this effect to petitioner.” And upheld the trial court ruling.
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