Interim Order 4

Order Details: copy of Order
Pdf Text: ORDER BELOW APPLICATION VIDE EXH. 37
in C.C. NO. 169/SS/2023
The present application is filed by the accused to lead the
evidence on oath and to produce the relevant documents. So also, to
summon defence witness. Complainant has given no objection by filing
say on over leaf of the application.
2. The present complaint is under section 138 of the
Negotiable Instruments Act, 1881 for dishonour of cheque, alleged to
have been issued in discharge of legally enforceable debt. After
recording statement of accused under section 313 of the Code of
Criminal Procedure she has filed the present application. Admittedly,
the accused has right to lead her evidence as answered by her to
question numbers 17 and 18 in her statement recorded under section
313 of the Code of Criminal Procedure.
3. It is well settled that, the accused is not entitled to give her
evidence by way of examination-in-chief affidavit, as there is express
bar under section 145 of the Act. In view of the judgment of Hon’ble
Andhra Pradesh High Court, reported in the case of
Kadiveti Ramanaiah
V/s. Ponguri Prabhakara Reddy, Cri. Petition No. 1594/2020 and
judgment of Hon’ble Appex Court reported in the case of
M/s. Mandvi
Co Op Bank Ltd. V/s. Nimesh B. Thakore AIR 2010 Supreme Court
1402, wherein Hon’ble Apex Court made a holistic analysis on the
special provision under section 145 of the Act.
4. It is well settled that as per section 145(1) of the Act only
complainant is entitle to tender his evidence in the form of affidavit of
examination-in-chief, as seen from its bare reading. However, the
provision is silent about accused. It means that, there is implied bar to
the accused for filing his/her evidence in the form of affidavit of
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examination-in- chief. When the language of the provision is clear and
plain and provides only for one meaning, it should be understood that
the Act speaks for itself. In view of above discussion, accused cannot be
permitted to file an affidavit in lieu of examination-in-chief, as the
provision under section 145(1) of the Act only entails for complainant
to tender evidence in such a mode. In the result, following order is
passed.
ORDER
1. Application(Exh. 37) is allowed.
2. Accused is permitted to lead her evidence as provided
under section 145 of the Act i.e. by way of entering into
the witness box followed by examination-in-chief and
cross-examination.
3. Both parties and their respective advocates to take
note.
Date :23/02/2026 (G. M. Charankar),
Judicial Magistrate (First Class)
73rd Court, Vikhroli, Mumbai.
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