Published on: 12 July 2023 at 14:00 IST
Court: Supreme Court
Citation: Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore (2010)
Honourable Supreme Court of India has held that the Accused is not having the any right to file “Affidavit of Evidence” in lieu of “Examination in Chief” as a right available to the Complainant in accordance with Section 315 of the Code of Criminal Procedure, 1973 read with Section 145 of the Negotiable Instruments Act, 1881. It is held that in cases where 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.
46. On this issue, we are afraid that the High Court overreached itself and took a course that amounts to taking over the legislative functions. On a bare reading of Section 143 (sic Section 145) it is clear that the legislature provided for the complainant to give his evidence on affidavit and did not provide for the accused to similarly do so. But the High Court thought that not mentioning the accused along with the complainant in sub-section (1) of Section 145 was merely an omission by the legislature that it could fill up without difficulty. Even though the legislature in their wisdom did not deem it proper to incorporate the word “accused” with the word “complainant” in Section 145(1), it did not mean that the Magistrate could not allow the accused to give his evidence on affidavit by applying the same analogy unless there was a just and reasonable ground to refuse such permission.
Drafted By Abhijit Mishra
