1 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE09H DAY OF AUGUST2016BEFORE THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY CRIMINAL PETITION No.1684 OF2016BETWEEN: Afzal Pasha, Son of Alam Pasha, Aged about 53 years, Residing at No.674, Old Syndicate Bank Road, 9th Main, 1st Stage, Indiranagar, Bangalore – 560 038. (By Shri Murthy D. Naik, Advocate) AND: Mohamed Ameerjan, Aged about 69 years, Son of Late Mohamed Akbar Sahib, Residing at No.A/03, 2nd Floor, C.K.Jaffar Sharieff Apartment, No.46, Haines Road, Frazer Town, Bengaluru – 560 005. …PETITIONER …RESPONDENT2(By Shri M. Ramakrishna, Advocate) ***** This Criminal Petition is filed under Section 482 code of Criminal Procedure, 1973, praying to direct the XIV Additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bangalore to accept the affidavit of the petitioner in lieu of this oral evidence in the form of Examination-in-Chief and to proceed with the case in C.C.No.50387/2014, pending on the file of the said court. This petition having been heard and reserved on 05.08.2016 and coming on for pronouncement of orders this day, the Court delivered the following:- ORDER
This petition coming on for admission, is heard and disposed of finally with the consent of counsel.
2. 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 (Hereinafter referred to as the ‘NI Act’, for brevity). The petitioner is contesting the case. At the stage when the case was set down for the evidence of the accused, he is said to have filed an application under Section 145(2) of the NI Act, 3 seeking permission of the court to file an affidavit in lieu of oral evidence. The trial court having rejected the application on the ground that the same is not permissible, the present petition is filed.
3. 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 SCC590 4. On the other hand, the learned counsel for the respondent would submit that the trial court has rightly rejected the application in the light of the judgment of the Supreme Court in the case of Mandvi Cooperative Bank limited v. Nimesh B. Thakore, (2010)3 SCC83 In the said case, the apex court had not agreed with the High Court which had held that Section 145(1) did confer a right on the complainant to give 4 evidence on affidavit. But there was no similar right conferred on the accused. That the legislature apparently had posited, that the immunity conferred on the accused from being compelled to be a witness against himself under Article 20(3) of the Constitution of India, did not warrant the incorporation of the word 'accused' with the word 'complainant' in sub-section 145 of the NI Act. The High Court had gone on to hold that, merely because, Section 145 did not expressly permit the accused to give evidence on affidavit, it did not mean that the Magistrate could not allow the accused to do so by applying the same analogy, unless there was just and reasonable ground to refuse such permission. It was held that there was no express bar on the accused to give evidence on affidavit, either in the NI Act or the Code of Criminal Procedure, 1973 (Hereinafter referred to as the ‘CrPC’, for brevity). The accused was permitted to tender evidence by way of affidavit. Taking exception to the above reasoning of the High Court, the Apex Court held as follows :
5. “46. On this issue, we are afraid that the High Court overreached itself and took a course that amounts to taking-over the legislative functions. On a bare reading of section 143 (sic Section
145) it is clear that the legislature provided for the complainant to give his evidence on affidavit and did not provide for the accused to similarly do so. But the High Court thought that not mentioning the accused along with the complainant in sub-section (1) of section 145 was merely an omission by the legislature that it could fill up without difficulty. Even though the legislature in their wisdom did not deem it proper to incorporate the word `accused' with the word `complainant' in section 145(1), it did not mean that the Magistrate could not allow the accused to give his evidence on affidavit by applying the same analogy unless there was a just and reasonable ground to refuse such permission.
47. There are two errors apparent in the reasoning of the High Court. First, 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 6 complaint under section 138 of the Act would be based largely on documentary evidence.
48. 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. It is, therefore, wrong to equate the defence evidence with the complainant's evidence and to extend the same option to the accused as well.” 5. In the light of the above, the point for consideration before this court is whether it would be impermissible for the accused to tender evidence by way of affidavit having regard to the tenor of Section 145 of the NI Act. It is seen that Sections 143 to 147 of the NI Act were inserted by the Negotiable Instruments (Amendment & 7 Miscellaneous Provisions)Act, 2002. One of the objects to bring about the new legislation mentioned in the Objects and Reasons of the Act of 2002 was to provide for summary trial of the cases under the Act, with a view to speed up the disposal of cases. Section 143 provides for the cases under the NI Act being tried summarily. Hence Sections 262 to 265 of the CrPC would be applicable. Section 145 of the NI Act, provides for a departure in the manner of tendering evidence at the trial, and permits evidence by way of affidavit. The said Section is extracted hereunder for ready reference: “145. Evidence on affidavit.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon 8 and examine any person giving evidence on affidavit as to the fact contained therein. “ Sub-section (1) contemplates an option which the complainant has of tendering his evidence by way of an affidavit. The omission of reference to the accused is for an obvious reason as shall be presently pointed out. Sub-section (2) would indicate that there could be affidavit evidence of both witnesses for the complainant and also witnesses for the accused. For otherwise, there would be no need to refer to an "application of the prosecution" to "examine any person giving evidence on affidavit ..."
. This is in consonance with the procedure prescribed for a Summary trial (which is the same as is specified for the trial of a Summons case, under the CrPC. See: Section 262 CrPC). The procedure prescribed there under does not contemplate the accused standing as a witness. Though he may examine witnesses on his behalf. 9 Chapter XXIV of the CrPC contains the General Provisions as to Enquiries and Trials. Section 315 thereof reads as follows:- “315.Accused person to be competent witness.- (1) Any person accused of an offence before a Criminal Court shall be a competent witness for the defense and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial: Provided that- (a) he shall not be called as a witness except on his own request in writing; (b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial (2) Any person against whom proceedings are instituted in any Criminal Court under section 98, or section 107, or section 108, or section 109, or section 110, or under Chapter IX or under Part B, Part C or 10 Part D of Chapter X, may offer himself as a witness in such proceedings: Provided that in proceedings under section 108, section 109 or section 110, the failure of such person to give evidence shall not be made the subject or any comment by any of the parties or the Court or give rise to any presumption against him or any other person proceeded against together with him at the same inquiry.” Therefore, it is clear that having regard to the Scheme of the CrPC, the legislature in its wisdom has left it open to the accused to exercise the option of examining himself as a witness for an offence punishable under Section 138 of the NI Act, in deliberately omitting any reference to the evidence of the accused by way of affidavit. For it would run against a first principle in criminal law namely, that an accused shall not be called as a witness except on his own request in writing. The evidence on behalf of the accused would include that of the accused, subject to Section 315 CrPC. If the evidence of the 11 witnesses could be by way of affidavit in terms of Section 145 NI Act, the evidence of the accused could also be way of affidavit. A closer scrutiny of Section 145 would indicate that the same is intended to ensure that the trial is concluded as expeditiously as possible. The said provision does not in any manner affect the right of the accused to cross examine the complainant and his witnesses. The said provision enables even the defence evidence to be led by affidavits. Thus, the said provision is purely procedural in nature. In this behalf, the Apex court has in Shreenath v. Rajesh, AIR1998SC1827 has held that in interpreting any procedural law, where more than one interpretation is possible, the one which curtails the procedure without eluding the justice, is to be adopted. The procedural law is always subservient to and is in aid to justice. (See: KSL Industries v. Khandelwal, 2006(1) Mh.LJ (Cri)
86) 12 The Apex Court in Mandvi Cooperative Bank Limited, (supra), has not examined the matter in the above perspective. On the other hand, the view taken and the directions issued in a more recent decision of the Apex Court, in the case of Indian Bank Association (supra) does contemplate evidence by affidavit by the accused. The relevant portion is extracted hereunder: “DIRECTIONS:
21. Many of the directions given by the various High Courts, in our view, are worthy of emulation by the Criminal Courts all over the country dealing with cases under Section 138 of the Negotiable Instruments Act, for which the following directions are being given :- (1) Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint, and if the cmplaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons. (2) The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. The court, in appropriate cases, may take the assistance of the police or the 13 (3) (4) (5) nearby court to serve notice on the accused. For notice of appearance, a short date be fixed. If the summons is received back un-served, immediate follow up action be taken. The court may indicate in the summons that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, the court may pass appropriate orders at the earliest. The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for re- calling a witness for cross-examination. The Court concerned must ensure that examination-in-chief, cross-examination and re- examination of the complainant must be conducted within three months of assigning the case. The court has option of accepting affidavits of the witnesses, instead of examining them in court. The witnesses to the complaint and accused must be available for cross- examination as and when there is direction to this effect by the court.
22. We, therefore, direct all the criminal courts in the country dealing with Section 138 cases to follow the abovementioned and expeditious disposal of cases falling under Section 138 of the Negotiable Instruments Act. The writ petition is, accordingly, disposed of, as above.” procedures for speedy 14 Incidentally, in the above judgment, the Supreme Court has referred to with approval the views expressed in the following decisions, in stating thus:- “ 22. We notice, considering all those aspects, few High Courts of the country have laid down certain procedures for speedy disposal of cases under Section 138 of the Negotiable Instruments Act. Reference, in this connection, may be made to the judgments of the Bombay High Court in KSL and Industries Ltd. Vs. Mannalal Khandelwal, 2005 Cri.LJ1201(Bom), Indo International Ltd. Vs. State of Maharashtra, 2006 Cri.LJ208 and Harischandra Biyani vs. Stock Holding Corpon. Of India Ltd.,(2006)4 MahLJ381 the judgment of the Calcutta High Court in Magma Leasing Limited v. State of West Bengal, (2007)3 CHN574 and the judgment of the Delhi High Court in Rajesh Agarwal vs. State, ILR (2010)6 Del 610.” In KSL and Industries Ltd., vs. Mannalal Khandelwal (supra), a Division Bench of the Bombay High Court in order to accomplish the underlying object of the Act, has issued certain directions, one of which reads as follows:- 15 “ (b) The Court concerned must ensure that examination-in-chief, cross-examination and re- examination of the complainant must be concluded within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross- examination as and when there is direction to this effect by the Court.” (emphasis supplied) In M/s Indo-International Ltd., vs. State of Maharashtra, (supra), the decision in KSL and Industries Ltd., vs. Mannalal Khandelwal (supra) has been relied upon and followed. In Harischandra Biyani vs. Stock Holding Corporation of India Ltd. (supra), the Bombay High Court has again applied and followed the decision in KSL and Industries Ltd., vs. Mannalal Khandelwal (supra). In Magma Leasing Ltd. Vs. State of West Bengal (supra), there is a reference to KSL and Industries Ltd., vs. Mannalal Khandelwal (supra), and the same has been referred to and 16 relied upon in holding that Section 145 enables the accused or defence to lay evidence by affidavit. In Rajesh Agarwal vs. State and another, (supra), again the decision in KSL and Industries Ltd., vs. Mannalal Khandelwal (supra), has been applied and the consistent view taken in these decisions has been approved and applied by the Supreme Court in direction no.5, referred to hereinabove. Hence, in keeping with judicial propriety, the later judgment of the Apex court can safely be applied when the divergent view is that of a co-ordinate bench of the same court. Accordingly, this petition is allowed. The trial court is directed to receive the affidavit evidence of the petitioner on his request, in accordance with Section 315 CrPC and proceed with the pending case in accordance with law. nv Sd/- JUDGE