Dishonour Of Cheque Trial : Accused And His Witnesses Can Lead Evidence On Affidavit: Gujarat HC [Read Judgment]
The Gujarat High Court on Tuesday held that just like the witnesses, the accused in a case filed under Section 138 of the Negotiable Instruments Act can also lead evidence by way of an affidavit in terms of Section 145.
Justice JB Pardiwala ruled, "The evidence on behalf of the accused would include that of the accused, subject to Section 315 Cr.P.C. If the evidence of the witnesses could be by way of affidavit in terms of Section 145 NI Act, the evidence of the accused could also be way of affidavit."
The court was hearing a petition filed by one Rakeshbhai Maganbhai Barot, challenging the validity of an order passed in March last year, rejecting his application to give his as well as his witnesses' evidence on affidavit by way of examination-in-chief. The petitioner had been charged under Section 138.
The high court did not agree with the trial court and rejected the contention that Section 145 of the Act excludes the accused and only entitles the complainant and his witnesses to give their evidence on affidavit.
It further pointed out that Section 145(2) provides for filing of evidence through affidavit by witnesses for the complainant as well as the accused. It then asserted that the accused can very well examine himself as a witness and would therefore be allowed to file evidence affidavit.
It explained, "Therefore, it is clear that having regard to the Scheme of the Cr.P.C., the Legislature in its wisdom has left it open to the accused to exercise the option of examining himself as a witness for an offence punishable under Section 138 of the NI Act, in deliberately omitting any reference to the evidence of the accused by way of affidavit. For it would run against a first principle in criminal law namely, that an accused shall not be called as a witness except on his own request in writing."
Besides, the court noted that the question had already been answered by a single judge of the court in Afzal Pasha v. Mohamed Ameerjan, wherein the Karnataka High Court had observed,
"A closer scrutiny of Section 145 would indicate that the same is intended to ensure that the trial is concluded as expeditiously as possible. The said provision does not in any manner affect the right of the accused to cross examine the complainant and his witnesses. The said provision enables even the defence evidence to be led by affidavits."
Agreeing with the Karnataka High Court's reasoning, the petition was allowed, quashing the impugned order. The trial court was directed to permit Mr. Barot to tender his evidence, including the evidence of his witnesses, if any, through affidavit.
Read the Judgment Here
Dishonour Of Cheque Trial | Lead Evidence On Affidavit | Gujarat High Court | Justice JB Pardiwala | Section 138 of the Negotiable Instruments Act | Section 145 NI Act