Can adverse inference be drawn against accused who fails to depose in a complaint under 138 niact

What is the offence alleged?

Has  the prosecution led the evidence requisite to establish her case beyond reasonable doubt? If so, what is her defence? Is it an alibi?

Its a complaint under Section 138 Negotiable Instruments Act

and yes we have provided all evidence and she has even accepted that the cheque is hers besides accepting that the loan was taken....

But her husband has come in for his wifes account and has not allowed the wife to stand witness.

He claims that he has made payments for his wife ..... and in his cross has accepted that he too had borrowed monies from my client.

An adverse inference can be drawn against an accused in a cheque bounce case if they fail to depose in person, even if their wife has given evidence, as a party's personal testimony is considered vital. The legal principle established by the Supreme Court holds that failing to appear and provide personal evidence, when it is essential to the case, can lead to a negative inference being drawn against that party, as it suggests they have something to hide. While the accused can try to rebut the presumptions through cross-examination of prosecution witnesses, their personal testimony carries significant weight. 

The Supreme Court has observed that adverse inference can be drawn against a party who does not appear in person to depose. The bench comprising Justices RF Nariman, Navin Sinha and Krishna Murari have observed that this is a violation of Sec144 of the Evidence act and cited it’s earlier judgement in Iswar Bhai C. Patel vs. Harihar Behera, (1999) 3 SCC 457.

" ...... she has even accepted that the cheque is hers besides accepting that the loan was taken". How?

Moreover the legal proposition of adverse inference against the defendant who did not present himself/herself as witness applies to civil proceedings and not criminal proceedings. In this context, please not that the accused has the protection of Fundamental Right enshrined in Article 20 of the Constitution -

20. Protection in respect of conviction for offences

" ...... she has even accepted that the cheque is hers besides accepting that the loan was taken". How?

SHE admits it through the 313 statement that was filed by her advocate on her instructions.

I find the judgment refered by my other friend i.e. "Iswar Bhai C. Patel vs. Harihar Behera, (1999) 3 SCC 457" to be useful. Section 114 of the Evidence Act is aplicable to both .... Civil and Criminal Proceedings

The accused must have to appear and depose her defence, which can be corroborated by her husband / relative / friend or someone else. When she/accused has failed to appear and put up her defence personally, negative inference shall have to be drawn by the Court.

You may appreciate the fact that the accused (wife) and her husband are two different entities in a complaint /State case, where on holding guilty and any punishment awarded to accused /wife, can/shall not be  served upon husband. 

Any menaingful suggestion requires that the 313 statement needs to be perused in its entirety esp. as to the circumstances in which the accused had allegedly given the cheque..

So also, in a criminal proceedings, it is for the complainant/prosecution to prove its case beyond reasonable doubt whereas in a civil proceedings, the standard of proof  is that of preponderance of probability.

It appears that there are deeper issues. It is too hasty for this forum to offer decisive suggestion esp. in a matter pending before the Court.

-If someone is accused in a cheque bounce case under Section 138 of NI Act and does not personally testify about facts that only he/she would know (i.e.,what she intended, why the cheque was issued, or her direct dealing), then the court can take her silence in the witness box against her. 
- Even if her spouse or someone holding her power-of-attorney speaks on her behalf, their testimony won’t fully satisfy the court for facts that are only in her personal knowledge. 
- In such situations, the failure to answer directly/refusing to depose, can be used by the court against the person and can weaken defence. 
- However, if a condonation for such thing is requested to the court with an application which enunciates reasons for such delay, if reasonable court may not take adverse action. (Only in exceptional cases). 
-  Evidence from a proxy (spouse/attorney) is limited by the hearsay rule, and is not a complete substitute for the accused’s deposition, so perosnal attendance is mandatory here and unadvisable to skip.