In N I Act whether accused may file affidavit
yogesh bawiskar
(Querist) 14 February 2010
This query is : Resolved
in matter of 138 of N I Act whether Accused may file his affidavit and document in his defence evidence
Arvind Singh Chauhan
(Expert) 14 February 2010
definitely at the stage of defence he may file affidavit and documents in his defence.
Parveen Kr. Aggarwal
(Expert) 14 February 2010
No. The accused cannot produce his defence evidence by way of affidavit. Section 145 of the Negotiable Instruments Act, 1881 may be referred, which reads as:
"145. Evidence on affidavit.
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974.) the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.
(2) 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."
The Apex Court has also held in a recent case that an accused cannot give evidence on affidavit.
Adinath@Avinash Patil
(Expert) 15 February 2010
Mr.Yogesh please go through the latest judgment of SUPREME COURT.
Dishonour of cheque - Accused cannot be permitted to lead his evidence by way of affidavit. 2010(1) Apex Court Judgments 228 (S.C.)
Raj Kumar Makkad
(Expert) 15 February 2010
I pay special thanks to Adinath Sir for updating me.
Shivasurya
(Expert) 15 February 2010
Dear Yogesh, in 138 NI Act proceedings, at the time of questioning u.s.313, Cr.P.C., the accused can give detailed answer in writting with documentary proof. the court shall discuss the answer u/s.313, Cr.P.C. at the time of delivering judgment. This is the best method to prove his case by the accused and the prosecution cannot cross examine the accused based on the written format given by the accused u/s.313, Cr.P.C.
Guest
(Expert) 16 February 2010
Bounced cheque: Accused can't give evidence on affidavit
(Published on: 03/02/2010 )
See Complete Judgment in : 2010(1) Law Herald (SC) 241 New Delhi, Jan. 12 : The Supreme Court on Monday ruled that in cheque bouncing cases, the right to give evidence on affidavit, as provided to the complainant under section 145 of the Negotiable Instruments Act, is not available to the accused for expeditious decision in such mounting cases which are chocking the administration of criminal justice system in the country. A bench comprising justices Tarun Chatterjee and Aftab Alam said it is not difficult to see that sections 143 to 147 were inserted in the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions ) Act, 2002 to do away with all the stages and processes in a regular criminal trial that normally cause inordinate delay in its conclusion and to make the trial procedure as expeditious as possible without in any way compromising on the right of the accused for a fair trial. It may be noted that cases under section 138 of the Act have been coming in such great multitude that even the introduction of such radical measures to make the trial procedure simplified and speedy has been of little help and cases of dishonoured cheques continue to pile up giving rise to an unbearable burden on the criminal court system. The Law Commission in its report number 213 sent to the Union minister for law and justice on November 24, 2008 advocated the setting up of fast track magisterial courts for dealing with the huge pendency of dishonoured cheque cases. The situation arising from the mounting arrears is so grave that in the 'Vision Statement' presented by the Union minister for law and justice to the chief justice of India in course of the national consultation for strengthening the judiciary towards reducing pendency and delays held on October 24, 2009, cases of dishonoured cheques were cited among one of the major bottlenecks in the criminal justice system. "We have no hesitation in holding that the high court was in error in taking the view that on a request made by the accused the magistrate may allow him to tender his evidence on affidavit and consequently we set aside the direction," said the apex court in its judgment , setting aside an order passed by the high court. The high court had ruled that the right to give evidence on affidavit as provided to the complainant under section 145(1) of the Act is also available to the accused. Source : The Economic Times
