Sha Maganlal Sakichandji Since deceased rep. by L.R. Mohith Kumar vs Prakash Palankar

N. Ananda, J.—These three appeals have arisen out of common judgment made by I-appellate court in Criminal Appeal Nos. 72/2009, 73/2009 & 74/2009 by judgment dated 31.12.2009. The learned Judge of I-appellate court has reversed the judgment of conviction made by trial court and acquitted respondent (hereinafter referred as ''accused'') of an offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short, ''the Act''). It is seen from records that accused was tried separately in C.C. Nos. 151/2008, 152/2008 & 153/2008 for an offence punishable u/s 138 of the Act. The learned trial Judge held accused guilty of an offence punishable u/s 138 of the Act by separate judgments made in C.C. Nos. 151/2008, 152/2008 & 153/2008. The accused had filed separate appeals in Criminal Appeal Nos. 72/2009, 73/2009 & 74/2009 against judgment of conviction made in C.C. Nos. 151/2008, 152/2008 & 153/2008. The learned Judge of I-appellate court by a common judgment accepted the appeals and reversed the judgments of conviction.

During pendency of these appeals, complainant died and legal representative of complainant was permitted to come on record. It is seen from records that in C.C. No. 152/2008 and C.C. No. 153/2008, learned trial Judge has accepted affidavit evidence of accused. The learned trial Judge by accepting the affidavit of accused (DW1) in lieu of examination-in-chief and considering cross-examination of accused has convicted him 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 appeals are accepted. The impugned judgments are set aside. The matters are 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 cases within a period of six months from the date of receipt of a copy of this judgment. Office is directed to send back records along with a copy of this judgment forthwith.