B.K. PRABHUSHANKAR Vs. DEEPAK G. ANKOLEKAR

JUDGEMENT

(1.) THE petitioner is before this Court challenging the judgment and order dated 8.02.2013 passed in Crl. A. No. 109/2011 by the Presiding Officer, FTC, Sagar confirming the judgment and order of conviction and sentence passed in C.C. No. 72/2010 by the Sr. Civil Judge and JMFC, Sagar convicting the petitioner for the offence under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him to pay a fine of Rs. 1,50,000/ - in default to undergo S.I. for a period of two years. Learned Counsel for the petitioner/accused at the outset submits that the judgment and order of conviction of sentence cannot be sustained for the reason that the Courts below have relied upon the evidence of the petitioner/accused filed by way of affidavit in lieu of oral evidence. He further submits that in view of the principles laid down by the Apex Court in the case of AIR 2010 SC 1402 the Court could not have acted upon the affidavit evidence filed in lieu of oral evidence as it is contrary to what is provided under Section 145(1) of the Negotiable Instruments Act, 1881. He further submits that this Court also under similar circumstances has held that in the case arising out of Negotiable Instruments Act, parties have to lead oral evidence before the Court and their affidavit can not be read as evidence in lieu of oral evidence. The course adopted by the Courts below in accepting the affidavit of the accused as evidence in lieu of oral evidence has vitiated the trial and therefore the impugned judgment and order of conviction and sentence be set aside and the matter be remanded to the Court below to dispose off the case in accordance with law by recording evidence as contemplated under Section 145(1) of the Negotiable Instruments Act, 1881.

(2.) LEARNED Counsel appearing for the respondent did not dispute this position of law. In view of the Courts below having proceeded acting upon the affidavit of the accused as evidence in lieu of oral evidence and in view of principles laid down by the Apex Court in the decision cited above the impugned judgment and order of conviction and sentence cannot be sustained, it has to be set aside and the matter has to be remanded back to the trial Court for disposal of the same in accordance with law by taking the evidence on record as contemplated under Section 145(1) of N.I. Act. Accordingly, I proceed to pass the following: