MANU/MH/0808/2008

Equivalent/Neutral Citation: II(2009)BC 21(Bom.), 2008(3)EC rN 1230, 2008(5)MhLj179

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Cri. Appln. No. 3093 of 2005
Decided On: 29.04.2008
Jaywant Sukhadeo Gadekar Vs. Prakash Panjabrao Raut and Ors.
Hon'ble Judges/Coram:
A.P. Lavande, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Abhay Sambre, Adv.
For Respondents/Defendant: S.G. Bhalerao, Adv. for respondent No. 1 and Y.B. Mandpe,
A.P.P. for respondent No. 2
Case Note:
Criminal - Accused Adducing Additional Eviction - Section 145(2) of
Negotiable Instruments Act, 1881; Section 315 of Criminal Procedure Code,
1973 - Magistrate rejected application filed by Applicant to adduce his
evidence on affidavit - Challenge against thereto - Hence, the present
Application - Held, defence evidence includes evidence of accused himself and
such evidence is led by filing affidavit as observed by Single Judge of this
Court in Indraprastha Holdings Ltd. v. Shri Vijay J. Shah and Anr - However,
under section 315 Cr.P.C. accused must make request in writing for
examining himself in defence - Accused entitled to lead evidence on affidavit
as per section 145(2) of N.I. Act and there is no bar for an accused to lead his
evidence under Section 315 Cr.P.C. on affidavit - Impugned order patently
unsustainable hence, quashed - Application allowed
JUDGMENT
A.P. Lavande, J.
1 . Heard Mr. A. Sambre, learned Counsel for the applicant. Mr. Bhalerao, learned
Counsel for respondent No. 1 and Mr. Mandpe, learned A.P.P. for respondent No. 2.
2. By this application under Section 482 of the Code of Criminal Procedure ("the Code"
for short) the applicant, who is the accused in Complaint Case No. 309/1995 pending
before the Judicial Magistrate First Class, Ner takes exception to the Order dated 10-11-
2005 passed by the learned Magistrate by which the application filed by the applicant to
adduce his evidence on affidavit has been rejected with costs of Rs. 500/-. Learned
Magistrate has held that there is no provision in law for the accused to lead evidence on
affidavit.
3. Mr. Sambre, learned Counsel for the applicant placing reliance upon Section 145(2)
of Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act") submitted that
the accused is entitled to lead evidence on affidavit and there is no bar for an accused
to lead his evidence under Section 315 of the Code on affidavit. In support of his
submissions, Mr. Sambre relied upon the judgment of this Court in Indraprastha

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Holdings Ltd. v. Shri Vijay J. Shah and Anr. MANU/MH/1105/2005 : 2006(1)MhLj101 .
4 . Per contra, Mr. Bhalerao, learned Counsel for respondent No. 1 supported the
impugned order. Mr. Mandpe, learned A.P.P. submitted that the impugned order is liable
to be set aside inasmuch as the accused can lead evidence on affidavit.
5. Section 145(2) of the Act, reads as under:
The Court may, if it thinks fit, and shall, on the application of the prosecution
or the accused, summon and examine any person giving evidence on affidavit
as to the facts contained therein.
6. Learned Single Judge of this Court in Indraprastha Holdings Ltd.'s case (supra) after
referring to the judgment of this Court in KSL Industries Ltd. v. Khandelwal and Ors.
2006 (1) Mh.L.J. (Cri) 86 : 2005 (2) All MR (Cri) 1105 has observed in para 7 of the
judgment, as follows:
Closer scrutiny of Section 145 shows that the same is intended to ensure that
the trial is concluded as expeditiously as possible. The said provision does not
in any manner affect the right of the accused to cross-examine the complainant
and his witnesses. The said provision enables even the defence evidence to be
led by affidavits. Thus, the said provision is purely procedural in nature. In this
behalf, decision of the Apex Court reported in MANU/SC/0286/1998 :
[1998]2SCR709 , Shreenath and Anr. v. Rajesh and Ors. is relevant. What has
been held by the Apex Court is that in interpreting any procedural law, where
more than one interpretations is possible, the one which curtails the procedural
without eluding the justice is to be adopted. The procedural law is always
subservient to and is in aid to justice.
The learned Single Judge has summarized the law laid down in the case of KSL
Industries Ltd. as under:
(a) The Court dealing with a complaint under Section 138 of the said Act of
1881 has an option to take evidence of the witnesses on the side of the
prosecution as well as evidence of the accused and the defence witnesses, if
any, on affidavit.
(b) If the evidence of a witness is taken on affidavit, after an application is
made by the other party under Sub-section (2) of Section 145, it is not
necessary to again record examination-in-chief of the witness whose affidavit of
examination-in-chief is already filed.
(c) If an affidavit is filed under Sub-section (1) of Section 145 and an
application is made under Sub-section (2) of Section 145 by the other party,
the witnesses must be made available for cross-examination by the rival party.
7. I am in respectful agreement with the view taken by learned Single Judge in the said
judgment. In terms of the said judgment even the defence evidence can be led by filing
affidavit. Needless to mention that defence evidence includes the evidence of the
accused himself. However, under Section 315 of the Code the accused must make
request in writing if he wants to examine himself in defence. Since defence evidence
can be led by filing affidavit, it is quite obvious that there is no bar for the accused to
tender his evidence by affidavit. After the accused tenders his affidavit, the procedure
contemplated in case where the evidence is tendered or affidavit has to be followed by

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learned Magistrate. I am, therefore, of the considered opinion that the impugned order
passed by the learned Magistrate is patently unsustainable and, therefore, liable to be
quashed and set aside.
8. For the reasons aforesaid, the impugned order dated 10-11-2005 is quashed and set
aside. The applicant is permitted to lead his evidence by filing affidavit. Needless to
mention that after evidence by way of affidavit is tendered by the applicant, respondent
No. 1 will be entitled to cross-examine him.
9 . Rule is made absolute in the aforesaid terms. Interim order stands vacated. The
parties to appear before learned Magistrate on 4 June, 2008 at 11.00 a.m. Since the
complaint is of the year 1998, learned Magistrate shall dispose of Criminal Complaint
Case No. 309/1998 expeditiously and in any case on or before 30th August, 2008.
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