Sri. Mohandas Shetty vs Shafeeq Ahamed

N. Ananda, J.—The appellant had initiated two complaints against the respondent-accused alleging an offence punishable u/s 138 of N.I. Act. The afore-stated complaints were registered in C.C. No. 17522/2004 and C.C. No. 596/2006. C.C. No. 17522/2004 was registered for dishonour of cheque bearing No. 186916 dated 27.12.2003 for a sum of Rs. 1,75,000/- and CC. No. 596/2006 was registered for dishonour of cheque bearing No. 186925 dated 26.04.2005 for a sum of Rs. 2,50,000/-. The learned trial Judge on appreciation of evidence, has acquitted the accused and therefore, the complainant has filed these two appeals.

I have heard the learned counsel for parties and have gone through the records, which would reveal that accused has filed defence evidence in the form of affidavits which is not permissible u/s 145 of N.I. Act.

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.

In the circumstances, the learned trial Judge should not have placed reliance on the affidavits filed in lieu of evidence of DW-1 Shafeeq Ahmed, DW-2 P. Narasimharaju and DW-3 Jahangir Basha. In view of this legal infirmity, the impugned judgments cannot be sustained. In the result,, I pass the following:

The appeals are accepted The impugned judgments are set aside. The matter is remanded to the learned Magistrate for reconsideration from the stage of the defence evidence. The learned Magistrate shall record the evidence of accused in accordance with law. The complainant is at liberty to adduce rebuttal evidence, if he so desires. The learned Magistrate shall decide the case within a period of three months from the date of receipt of a copy of this order. Office is directed to send back the lower court records along with a copy of this order.