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. Thaniya vs. M. Balasamy Nadar, 2005 (2) C.T.C. 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.

(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 Calender Case No.205 of 2005. The matter was pending before the Judicial Magistrate No.II, Srivilliputhur. 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.) SECTION 138 of the Act Negotiable Instruments Act, 1983 (hereinafter referred to as 'the Act') was introduced by the Banking, Public Financial Institutions and Negotiable Instruments (Amendment) Act, 1988 to give greater credibility to our trade, business, commerce and industry. Its constitutional validity has been upheld. SECTION 138 deals with dishonour of cheques for want of insufficiency, etc. of funds in the account; SECTION 140 deals with the defence which is not permissible in any prosecution under SECTION 138; SECTION 141 deals with offences by companies; and SECTION 142 deals with cognizance of offence. Though these provisions are comparatively recent, they have let loose an avalanche of litigation. Had a judicial impact assessment been made as mentioned in Salem Bar Association Case regarding the litigation this enactment would generate and the consequent financial impact on the State , we do not know if the result would have been in favour of enacting S. 138.