S.145 NI Act | Only Complainant Can Lead Evidence By Affidavit In Cheque Bounce Cases, Not Accused: Orissa High Court

The Orissa High Court has held that only the complainant in a cheque dishonour case, under Section 138 of the Negotiable Instruments Act, 1881 ('the Act'), may give his evidence-in-chief by way of an affidavit as per Section 145(1) of the Act. It clarified that the same procedure is not applicable to the accused, who is required to render his examination-in-chief before the Court itself.Ruling out permissibility of accused's evidence-in-chief through affidavit, the Bench of Dr. Justice Sanjeeb Kumar Panigrahi said–“A plain reading of the aforesaid provision makes it clear that sub-section (1) expressly enables the complainant to present his evidence by way of affidavit and permits such affidavit to be read in evidence in any enquiry, trial or other proceeding under the Code of Criminal Procedure. It is pertinent to note that the provision specifically uses the expression “complainant” in sub-section (1) and does not extend the same liberty to the accused.”The petitioners/accused had issued an undated cheque as security. The private opposite party/complainant allegedly, in violation of the terms of settlement, inserted a date in the cheque and presented the same before the Bank without the knowledge of the petitioners, whereafter the cheque was dishonoured. Though another cheque was issued by the petitioners, they subsequently instructed the bank to stop the payment.Therefore, a complaint case was filed by the complainant before the SDJM, Bhubaneswar. The petitioners filed their evidence-in-chief denying liability in respect of the alleged outstanding amount. The complainant filed a petition seeking rejection of the evidence-in-chief of the petitioners, since Section 145(1) of the Act allows only the complainant to give evidence-in-chief through affidavit.Upon hearing rival contentions, the SDJM allowed the petition filed by the complainant and directed the petitioners to give their evidence-in-chief before the Court in accordance with law. Impugning the aforesaid order, the petitioners approached the High Court under Section 528 of the Bhartiya Nagarik Suraksha Sanhita (BNSS).Thus, the moot question which arose for consideration before the High Court was whether as per Section 145 of the NI Act, a Magistrate can allow an accused to render his evidence-in-chief by way of affidavit or the same is only permissible for evidence-in-chief of the complainant.In order to answer the above question, the Court examined the statutory prescription under Section 145(1). Justice Panigrahi stressed that the provision specifically employes the term “complainant”. Similarly, Section 145(2) provides that the Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person who has given evidence on affidavit as to the facts contained therein. Therefore, he was of the view that–“The said provision is thus concerned with the summoning and examination of a person who has already given evidence on affidavit. The provision, however, on a plain reading, cannot be construed to confer any right upon the accused to adduce evidence-in-chief by way of affidavit as the Court cannot supply words to a statute which the legislature has deliberately omitted.”To solidify the above interpretation, the Court further relied upon Mandvi Cooperative Bank Limited v. Nimesh B. Thakore (2010), wherein the Apex Court held as follows–“There are two errors apparent in the reasoning of the High Court. First, if the legislature in their wisdom did not think “it proper to incorporate a word 'accused' with the word 'complainant' in Section 145(1)….”, it was not open to the High Court to fill up the self-perceived blank. Secondly, the High Court was in error in drawing an analogy between the evidences of the complainant and the accused in a case of dishonoured cheque... It is, therefore, wrong to equate the defence evidence with the complainant's evidence and to extend the same option to the accused as well.”The above view found reiteration in Indian Bank Association v. Union of India (2014). Hence, the Court had no hesitation to hold that only complainant can give his evidence-in-chief by way of affidavit and the same procedure is not applicable for accused, who must give his evidence as per the normal procedure before the Court. Thus, it concluded–“Having considered the reasoning of the learned SDJM, Bhubaneswar and the statutory provision and judicial precedents in question, this Court finds that the view taken by the learned SDJM, Bhubaneswar is consistent with the interpretation placed upon Section 145 of the Negotiable Instruments Act, 1881 by the Supreme Court in Mandvi Cooperative Bank Limited (supra).There is no infirmity in the reasoning of the learned SDJM, Bhubaneswar so as to warrant interference in exercise of the inherent powers of this Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023.” Case Title: Brahmananda Pradhan & Anr. v. State of Odisha & Anr.Case No: CRLMC ...

S.145 NI Act | Only Complainant Can Lead Evidence By Affidavit In Cheque Bounce Cases, Not Accused: Orissa High Court

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