Accused is not competent to tender affidavit by way of evidence in Section 138 Negotiable Instruments Act, 1881 proceedings

The Punjab and Haryana High Court has held that an accused facing trial under the provisions of Negotiable Instruments Act cannot be allowed to tender affidavit by way of evidence.

The said ruling was held in the matter of Rajni Dhingra vs. Sanjeev Chugh (CRM-M 41179/2019), decided on 05.11.2019

Challenge

In the instant case, the Accused before the trial court contended that since his statements in the case were based on lot of documentary evidence which could not be deposed in oral statement, he should be allowed to give his evidence on affidavit. The Trial Court rejected the same.

A short question that arose in the present petition was as to whether accused while appearing as witness in defense can be allowed to lead his evidence on affidavit?

Reliance was placed by the Petitioner/ Accused on Indian Bank Association & Ors. v. Union of India & Ors., (2014) 5 SCC 590, whereby the Apex Court had allowed the accused to give his evidence on affidavit, unless there was a just and reasonable ground to refuse such permission.

Held

The High Court observed and placed reliance on the decision of the Apex Court in Mandvi Cooperative Bank Limited vs. Nimesh B. Thakore, (2010) 3 SCC 83 wherein

the Apex Court took up and decided the issue as to whether the accused can be allowed to give evidence on affidavit as per provisions of Section 145(2) of NI Act and observed that it was wrong to equate the defence evidence with the complainant’s evidence and to extend the option of giving evidence on affidavit to the accused as well. It was also observed that if the legislature in their wisdom did not think “it proper to incorporate a word ‘accused’ with the word ‘complainant’ in section 145(1)……”, then the accused cannot be given the benefit of leading evidence by way of affidavit.

Applying the said principles and noting that the observations made by the court in case of Mandvi Cooperative Bank Ltd. had not been set aside or dissented in the case of Indian Bank Association, the Punjab and Haryana High Court held that the Accused in Section 138 NI Act proceedings is not competent to tender his evidence through affidavit.