Judgment:
(Prayer:These CRL.AS. are filed under Section 378(4) CR.P.C praying to set aside the Judgment and Order dated 05.04.2008 in C.C. Nos. 21644/06, 21645/06 and 21647/06 Respectively passed by the court of the XII Addl. C.M.M, Bangalore, and to convict the Respondent and sentence her to pay a fine of double the cheque amount and order for compensation to the Appellant, for the offence punishable under section 138 of N.I Act.)
1. The appellant in these appeals has challenged the judgment and order of acquittal of respondents for the charge under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘NI Act’ for short) on a trial held by Addl. Chief Metropolitan Magistrate, Bangalore City.
2. The facts relevant for the purpose of these appeals are as under:
The appellant is the complaint in CC Nos. 21644, 21645 and 21647 of 2006 filed before the Trial Court as against the respondents respectively. It is her claim that she advanced a loan of Rs. 1,00,000/- to the accused in CC No.21644/2006, Rs. 10,00,000/- to the accused in CC No.21645/2006 and Rs. 19,50,000/- to the accused in CC No.21647/2006 in the month of February, 2006 and towards the repayment of dues, the respondents (accused) in each of the cases said to have issued the cheques. The cheques were presented by the appellant in the Bank for encashment. The said cheques returned with an endorsement of “insufficient funds”. Hence, the appellant issued notices to respondents and as there was no compliance with the demand made, the complaints came to be filed against the accused to initiate action for the offence under Section 138 of the NI Act.
3. During the trial, the complainant was examined as PW1 and many documents were exhibited on her behalf whereas the respective accused was examined as DW1 and they have also produced numerous documents by way of defence. The Trial Court after hearing the counsel for parties and on appreciation of the material placed on record, has acquitted the accused. Aggrieved by the order of acquittal, present appeals have been filed.
4. As the facts and law applicable to the parties are similar and same, they are taken together for consideration.
5. I have heard learned Counsel for the appellant as well as learned Counsel for the respondents.
6. It is the specific contention of learned Counsel for the Appellant that the Trial Court committed an error in permitting the respondents to file an affidavit in lieu of chief examination though the law does not contemplate such procedure, therefore, he claims that the Court below has committed a grave error in relying upon such evidence of respondents and dismissing the complaint filed by the appellant. Therefore, prays to set aside the judgment and order of acquittal and also prays to remit the matter back to Trial Court with a direction to record the evidence of accused in accordance with law to dispose of the case.
7. Per contra, learned Counsel for the respondents in all the cases submit that there is no such error or illegality in the procedure adopted by the Trial Court and hence, he submits that there is no necessity to remit the matter back to Trial Court.
8. So far as the procedure for recording evidence in these proceedings are concerned, Section 145 of the NI Act is relevant and the same is extracted hereunder for the sake of convenience:
“145(1). Evidence on affidavit:-
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), 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.”
9. So, as could be seen from the aforesaid provision by an amendment to NI Act which came into force with effect from 06.02.2003, the complainant in the proceedings under Section 138 of the NI Act is permitted to file an affidavit and for all the purpose such affidavit is considered as examination-in-chief. The above said provision do not apply to the cases where accused is examined, as the word used in the aforesaid provisions is only the complainant and not the accused.
10. On this aspect of the matter, learned Counsel for the appellant has placed reliance on the decision of Apex Court reported in AIR 2010 SC 1402 (M/s Mandvi Co-op Bank Ltd., Vs Nimesh B Thakore). In the aforesaid decision, Section 145(1) of the Act was taken into consideration and in the said case, this Court had given direction stating that there is no express bar on the accused to give evidence on affidavit either in the Act or in the Code. This Court had held that providing similar right to the accused would be in furtherance of legislative intent to make a trial far swifter. This direction issued by the Court was challenged in the decision referred above before the Apex Court and in para 35 it observed thus:
“35. In Duport Steels Ltd. Vs Sirs (1980) 1 All ER 529, 534, Lord Scarman expounded the legal position in the following words:
“But in the field of statute law the judge must be obedient to the will of parliament as expressed in its enactments. In this field Parliament makes and unmakes the law. The judge’s duty is to interpret and to apply the law not to change it to meet the judge’s idea of what justice requires. Interpretations does, of course, imply in the interpreter a power of choice where differing construction are possible. But our law require the judge to choose the construction which in his judgment best meets the legislative purpose of the enactment. If the result be unjust but inevitable, the judge may say so and invite Parliament to reconsider its provision. But he must not deny the statute.”
Ultimately it held thus:
“In light of the above, we have no hesitation in holding that the High Court was in error in taking the view, that on a request made by the accused the Magistrate may allow him to tender his evidence on affidavit and consequently, we set aside the direction as contained in sub-paragraph (r) of paragraph 45 of the High Court judgment. The appeal arising from SLP (Crl.) No.3915/2006 is allowed.”
11. So, when the law provides specific procedure as to how the evidence has to be recorded, the same has to be followed as it is and it is only because generally in exceptional cases, the accused is examined and it is the legislative intent that the examination of accused has to be only after he/she enters the witness box. Therefore, the Trial Court without looking to the said aspect has permitted the accused to file an affidavit in lieu of chief examination and accepted such evidence and granted an order of acquittal. Though a complainant has an authority to file affidavit in lieu of chief examination, this right given to the complainant cannot be extended to an accused. Therefore, without expressing any opinion on merits of the case, I think that the Trial Court committed an error in accepting the affidavit filed by the respondents in lieu of chief examination and as there is an inherent defect in procedure adopted, the impugned orders will have to be set aside.
12. In the result, the appeals are allowed. The judgment and order acquitting the respondents for the charge under Section 138 of N.I. Act are set aside. The matters are remitted back to the Trial Court with a direction to afford an opportunity to the respondents (accused) to give evidence by entering into witness box instead of accepting affidavit and dispose of the case in accordance with law.
As the matter is of the year 2006, the Court below is directed to expedite the matter and dispose of the case preferably within three months from the date of communication of this order.