MURLIDHAR CHANDIRAM GYANCHANDANI Vs. JAI AGENCIES PUSAD

JUDGEMENT

(1.) Rule. Rule made returnable forthwith. Heard finally with the consent of the learned Counsel for the petitioner and the learned Counsel for the respondent. By this petition, the original complainant in Summary Criminal Case No. 1100 of 2007 instituted upon the accusation of the respondent-accused having committed an offence under Section 138 of the Negotiable Instruments Act, has prayed for quashing and setting aside the order dated 27.9.2012 passed on Exh. 113 by the Trial Court.

(2.) The respondent-accused preferred said application inter alia praying for permitting him to lead his evidence in defence. By the order impugned, the said prayer was allowed with observation that the respondent-accused was permitted to examine himself in defence but he was not permitted to examine any other witness, except witnesses already examined by him earlier. Furthermore, the direction was given to respondent-accused to file his evidence on affidavit or oral evidence, as desired on next date without fail.

(3.) Mr. Vyawahare, learned Counsel for the petitioner, by inviting attention to the provisions of Section 145 of the Negotiable Instruments Act as well as the decision in the case of Mandvi Co. op. Bank Ltd. v. Nimesh B. Thakore, 2010 1 SLT 133, submitted that the Apex Court therein considered provisions of Section 145 of the Negotiable Instruments Act and ruled that though thereunder complainant is entitled to lead his evidence by filing an affidavit, it is not permissible for accused to lead his evidence on affidavit. The learned Counsel contends that in view of relevant provision and of Apex Court aforesaid decision thereon, the direction given by the learned Magistrate in the present case to the respondent to file his affidavit and thereby impliedly permitting him to lead his evidence in defence by way of an affidavit is not only unwarranted but legally unsustainable.