SHASHANK JHA Vs. DIYA ASSOCIATES

JUDGEMENT

(1.) The prayer in the present petition is to quash the order dated 11.01.2019 passed by Judicial Magistrate Ist Class, Sirsa vide which the application filed by the petitioner under Section 145 of NI Act for allowing him to appear as defence witness and to lead evidence by way of affidavit was partly dismissed. m

(2.) While arguing the case, learned counsel for the petitioner has submitted that Section 145 of NI Act permits the evidence to be taken by the trial Court through affidavits. Still further, it is contended by the counsel that as per provisions of Section 315 Cr.P.C., the accused is to be taken as a competent witness in a trial against him. Therefore, the petitioner has every right to appear as his own witness and to lead the evidence in his defence. Still further, counsel for the petitioner has contended that since Section 145 of NI Act provide for taking the evidence by the trial Court through affidavits, therefore, no distinction can be made between the evidence of the complainant and the evidence of the accused. It is further submitted that by availing this provision, the trial Court should have permitted the petitioner to lead the evidence through affidavits. Counsel for the petitioner has relied upon a judgment of High Court of Karnataka in case Afzal Pasha v. Mohamed Ameerjan - Criminal Petition No.1684 of 2016, decided on 09.09.2016 and a judgment of High Court of Gujarat at Ahemdabad in Rakesh Bhai Magan Bhai Barot v. State of Gujarat - Special Criminal Application No.3367 of 2018 decided on 29.01.2019.

(3.) So far as the insistence of the petitioner on leading the evidence through affidavit is concerned, this Court finds that the trial Court has given a valid reasoning for declining the prayer made by the petitioner. The trial Court has followed the mandate of the Hon'ble Supreme Court, as laid down in its judgment reported in 2010(1) JT 259 - Mandvi Co-op Bank Ltd. v. Nimesh B. Thakore. A perusal of the judgment of the Hon'ble Supreme Court shows that in that case, the High Court had permitted the evidence of the accused to be led by way of affidavit. However, the Hon'ble Supreme Court, after considering the entire proposition threadbare, held the order of the High Court to be wrong. Accordingly, the order passed by the High Court in that case was set aside; holding that the accused cannot be permitted to lead his evidence by way of an affidavit in terms of Section 145 of NI Act.