P. JANAKUMAR Vs. G. PANDIYARAJ

JUDGEMENT

(1.) THE question before us is whether the accused has the right to let in evidence by filing an affidavit under Section 145 of the Negotiable Instruments Act, 1983. In V. Thanaiya v. M. Balasamy Nadar, 2005(2) CTC 288, it was held that such a right is not available to the accused. But, another learned Single Judge, before whom the present Criminal Revision Case was listed, was not inclined to agree with the said view and, therefore, the matter was referred to a Division Bench and it was placed before us on the directions of the Honourable the Chief Justice. (8)

(2.) A Criminal Complaint for the offence under Section 138 of the Negotiable Instruments Act, 1983 preferred invoking the provision under Section 200 of the Code of Criminal Procedure has been taken on file in Calendar Case No. 205 of 2005. The matter was pending before the Judicial Magistrate No. II, Sri villiputhur. The accused filed a petition for permission to give evidence on affidavit. This was resisted by the complainant. Learned Judicial Magistrate No. II, Srivilliputhur dismissed the said petition. Aggrieved by that, the Revision was filed.

(3.) MR . K.K. Ramakrishnan appearing as Intervenor also made his submissions. Section 139 of the Act raises several presumptions and, therefore, the accused will have to rebut the presumption. A trial on a Complaint under Section 138 of the Act is different from a trial in other criminal cases where there is presumption of innocence which throws the entire burden of proof on the prosecution. Here, execution/of the instrument and passing of consideration are all matters which are presumed and they have to be rebutted and, therefore, the benefit given to the complainant should be given to the accused as well. Learned Counsel also submitted that there is a difference between Sections 243 and 254 of the Code of Criminal Procedure. Section 243, which deals with evidence for defence, gives an option to the accused to put in a written statement, but there is nothing to indicate the examination of the accused. Whereas Section 254 provides for hearing the accused also. Learned Counsel submitted that considering the purpose of the amendment which should be dealt with as a causus omissus, this Court, with a view to advance the objects and reasons of the Act, must permit the accused to give evidence in chief-examination. Several decisions were cited.