Punjab & Haryana High Court: Surinder Gupta, J. dismissed a petition dealing with the question whether accused under Negotiable Instruments Act, 1881 should be allowed to give his evidence in affidavit similar to that of a complainant.
The petitioner was facing trial in a complaint filed under the provisions of NI Act and sought permission from the trial court to submit his evidence through affidavit but the trial court refused to grant permission for the same while relying on observations in case of Mandvi Cooperative Bank Limited v. Nimesh B Thakore, (2010) 3 SCC 83.
Counsel for the petitioner, R.S. Rai argued that in the case of India Bank Association v. Union of India, (2014) 5 SCC 590 the accused was granted permission to submit his evidence on affidavit with the guideline that accused may submit his affidavit unless there is a justified ground to deny such permission. Further, the counsel argued that the order of trial court relying on observation of Mandvi Cooperative Bank Limited case was not sustainable.
While denying the petition and holding the order of trial court valid, the High Court stated the observation laid down by the Supreme Court in the case of Mandvi Cooperative Bank Limited that there is a basic difference in the nature of evidence of complainant and accused in a case of dishonoured cheque and it is wrong and unjustified to draw analogy between both, the Supreme Court opined that accused may not be able to provide any evidence and if any evidence is provided the nature of it may not be necessarily documentary and the defence will try to lead other kinds of evidences to rebut the presumption that the issuance of cheque was not in the discharge of any debt or liability. The Supreme Court discarded the observation laid down by High Court that Section 145(1) lays down the provision of filing an affidavit by the complainant so it can be assumed that accused can also file a similar affidavit.
Further, the Court opined that in case of Indian Bank Association the Supreme Court was dealing with the issue of setting guidelines/directions to be followed by the courts while trying complaints under Section 138 of the Negotiable Instrument Act that deals with dishonoured cheque and insufficiency in funds.
It was held that the law laid down in the Mandvi Cooperative Bank Limited case had not been dissented. Thus, the decision of the trial court was upheld and the petition was dismissed. [Rajni Dhingra v. Sanjeev Chugh, 2019 SCC OnLine P&H 2464, decided on 05-11-2019]
What does it mean by not competent to file an affidavit of evidence?
It is an oath statement of fact. If there is no such thing then it is not competent.
Thank you for answering! Now, I understand better.