KALLADIKKATTIL MOHAMMED JAMAL Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is the sole accused for the offence punishable under section 138 of the Negotiable Instruments Act, instituted on the basis of a complaint preferred by the second respondent herein.

(2.) The gist of the complaint is that the accused had executed and issued a cheque on 3.1.2004 for an amount of Rs. 10,00,000/- and that on the basis of the dishonour of the cheque, the complaint has been initiated for the above said offence, after complying with the requisite formalities. The specific defence taken by the accused is that he was not in India on 3.1.2004 and he was abroad during the relevant period and that the petitioner has preferred Crl.M.C.No.1160 of 2016 to quash all further proceedings in the impugned Annexure-I complaint by placing reliance on the passport. According to the petitioner, he had left India on 6.11.2003 and returned only on 19.7.2005. This Court as per Annexure-II order dated 5.12.2016 had disposed of Crl.M.C.No.1160 of 2016 whereby the said plea of the petitioner was not accepted and a direction was issued to the learned Magistrate to expedite the trial of the case as the evidence had already commenced in the case. The petitioner was co-operating with the trial of the case and that the petitioner himself was examined as DW-1 on affidavit filed in lieu of examination in chief and he was cross-examined by the defence without there being any objection in examination in chief on affidavit filed by the petitioner.

(3.) It is pointed out that it is only due to the mistake of the counsel for the petitioner the petitioner was examined in chief on affidavit and the learned Magistrate permitted the petitioner to be examined as a witness under section 315 of the Code of Criminal Procedure, 1973 and he was thoroughly cross-examined by defence without there being any objection. When the matter was listed for hearing, learned counsel appearing for the complainant submitted that the evidence of DW-1 cannot be considered as he was examined in chief on affidavit and it is impermissible under section 145(2) of the Negotiable Instruments Act. Immediately on noting the said mistake committed by his counsel, the petitioner through counsel had filed Annexure-IV application on 28.3.2017 as Crl.M.P. No.25 of 2017 before the learned Magistrate seeking permission to examine the petitioner as witness and record his evidence afresh as his examination in chief is bad in law in the light of the decision reported in Mandvi Co-operative Bank Ltd. v. Nimesh B Thakur reported in 2010 (3) SCC 83 = 2010 (2) SCC (Cri.) 1 = 2010 (1) KLT 321 (SC). In the said judgment of the Apex Court it was held that "accused has no right to give his evidence, like complainant, on affidavit". However, learned Magistrate has dismissed Annexure-IV application as per the impugned Annexure-V order dated 10.4.2017 on the ground that accepting the said prayer of the petitioner would amount to reviewing the earlier illegal action in permitting the petitioner to give evidence through proof affidavit and that the criminal court has no power to review its order or judgment, except to correct clerical or arithmetical errors, as per section 362 of the Cr.P.C., 1973