[Negotiable Instruments Act] Evidence Of Accused Cannot Be Tendered By Way Of Affidavit: Karnataka High Court

A Single judge bench of Justice M Nagaprasanna allowed the petition filed by the complainant Zaheeda Inamdhar and set aside an order of the trial court permitting the filing of an affidavit by the accused Dr Fatima Hassina Sayeedha and rejecting Inamdhar's application filed under Section 311 of CrPC to cross-examine the accused.

The court said “The statute does not confer any right on the accused to file his evidence by way of an affidavit. It is the right of the complainant, and the legislature in its wisdom has excluded the same right to be conferred upon the accused.”

The complainant had initiated the proceedings under Section 138 of the Act against the accused. On 16-11-2018, the petitioner was cross-examined by the counsel for the accused. On 25-03-2019 the accused filed an affidavit in lieu of her presence for examination-in-chief, which was accepted on that day the complainant was absent.

Following this the complainant preferred an application under Section 311 of the Cr.P.C, seeking further cross-examination of DW-1. The accused filed objections and the trial court rejected the application.

The petitioner argued that an application filed seeking further cross-examination of the accused is rejected which is contrary to law. Further, it was prayed that the court should not permit the accused to continue with the trial on the basis of an affidavit that is filed as examination-in-chief.

Findings:

The bench noted that Section 145 of the Act confers a right on the complainant to give affidavit evidence. It stops at that. It does not confer the same right on the accused.

Placing reliance on Supreme Court judgment in the case of Mandvi Cooperative Bank Limited v. Nimesh B.Thakore, (2010) 3 SCC 83, the court said, “No right to the accused to file the affidavit evidence, the proceedings of the learned Magistrate who has permitted filing of the evidence by way of an affidavit by the accused is illegal and unsustainable. Therefore, the said action of the learned Magistrate will have to be obliterated from the stage of acceptance of affidavit evidence of the accused.”

Further, it set aside the order of the trial court rejecting the application made under section 311 CrPC. It said, “Owing to the absence of the complainant on a particular day, the cross-examination of the accused is rendered nil, apart from the illegality of permitting her to file the evidence by way of affidavit. It cannot be that the accused is not cross-examined at all, by the complainant. Therefore, the Court ought to have permitted further cross-examination of the accused/DW-1.”

Appearance: Senior Advocate P.P Hegde, for Petitioner.

Advocate M.N.Umesh for Respondent

Citation No: 2024 LiveLaw (Kar) 329

Case Title: Zaheda Inamdhar AND Dr Fatima Hassina Sayyedha

Case No: WRIT PETITION No.3519 OF 2024

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