[138 NI Act] Accused Not Competent To Tender Evidence On Affidavit: Reiterates Punjab & Haryana HC [Read Judgment]

Justice Surinder Gupta said,

"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."

The order was passed on the basis of reasoning tendered by the Supreme Court in Mandvi Cooperative Bank Limited vs. Nimesh B. Thakore, (2010) 3 SCC 83.

In the said case, the Apex Court took up and decided the issue as to whether the accused can be allowed to give evidence on affidavit as per provisions of Section 145(2) of NI Act and observed that it was wrong to equate the defence evidence with the complainant's evidence and to extend the option of giving evidence on affidavit to the accused as well.

Setting aside the order of the high court therein, the Apex Court had reasoned as under:

"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 dishonored 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."

The Petitioner-accused Rajni Dhingra, through Senior Advocate R.S. Rai with Advocate Anurag Arora, had argued that since his statements in the case were based on lot of documentary evidence, which could not be deposed in oral statement, he should be allowed to give his evidence on affidavit.

Reliance was placed on Indian Bank Association & Ors. v. Union of India & Ors., (2014) 5 SCC 590, whereby the Apex Court while laying down appropriate guidelines/directions to be followed by the Courts while trying complaints under Section 138 of NI Act, had allowed the accused to give his evidence on affidavit, unless there was a just and reasonable ground to refuse such permission.

Noting that the observations made by the court in case of Mandvi Cooperative Bank Ltd. (supra) had not been set aside or dissented in the case of Indian Bank Association (supra), the high court said,

"In view of clear proposition of law as laid down in Mandvi Cooperative Bank Ltd. (supra) by Hon'ble Apex Court, 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."

It is noteworthy that earlier this year, the Gujarat High Court, faced with a similar question, had upheld the right of an accused to lead evidence on affidavit, in light of the Indian Bank Association (supra) case.

Justice JB Pardiwala had ruled, "The evidence on behalf of the accused would include that of the accused, subject to Section 315 Cr.P.C. If the evidence of the 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."

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