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Judgment
9 paragraphs · 319 wordsN. Ananda, J.—The learned Magistrate has acquitted respondent (hereinafter referred as ''accused'') of an offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short, ''the Act''). Therefore, appellant (hereinafter referred as ''complainant'') is before this court. I have heard learned counsel for complainant and I have gone through the records.
The learned trial Judge by accepting the affidavit of accused (DW1) in lieu of examination-in-chief and considering cross-examination of accused has acquitted accused of an offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short, ''the Act'').
u/s 145 of the Act, complainant has been permitted to submit affidavit in lieu of examination-in-chief. However, accused is not permitted to file an affidavit in lieu of examination-in-chief.
In a decision reported in Mandvi Co-op. Bank Ltd. Vs. Nimesh B. Thakore, , the Supreme Court has held:-
J. Negotiable Instruments Act, 1881--S. 145(1)-Right to give evidence on affidavit-Not available to accused-When legislature clearly used the expression "evidence of the complainant may be given by him on affidavit", court cannot add word "accused" in it-Moreover, there is basic difference between nature of evidence of complainant and that of accused in case of dishonoured cheque and therefore by drawing the same analogy it cannot be held that Magistrate can allow accused also to give evidence on affidavit.
Therefore, the impugned judgment cannot be sustained.
In the result, I pass the following:-
ORDER
The appeal is accepted. The impugned judgment is set aside. The matter is remanded to learned trial Judge. The learned trial Judge shall record evidence of accused in accordance with law. The complainant is at liberty to adduce rebuttal evidence. The learned trial Judge shall decide the case within a period of three months from the date of receipt of a copy of this judgment. Office is directed to forthwith send back the records to trial court along with a copy of this judgment.