Accused cannot tender defence evidence by affidavit in Section 138 proceedings.

The complainant appealed under Section 378(4) CrPC against the acquittal of the respondents in a complaint under Section 138 of the Negotiable Instruments Act concerning dishonoured cheques for ₹30,00,000.

At trial, the complainant testified as PW-1 and marked 14 documents; respondent No. 2 gave evidence as DW-1 by affidavit.

The trial court acquitted both accused.

On appeal, the complainant challenged the trial court’s acceptance of the accused’s affidavit evidence.

1. Whether the trial court could accept the accused’s evidence by affidavit in the Section 138 proceedings.

2. Whether the acquittal should be set aside and the matter remitted to permit the accused to give oral evidence.

The Court considered the proceedings under Section 138 of the Negotiable Instruments Act and the appeal under Section 378(4) CrPC.

Relying on Mandvi Co-operative Bank Ltd. v. Nimesh B. Thakore, (2010) 3 SCC 83, it applied the rule that a Magistrate cannot, at the accused’s request, permit the accused to tender evidence by affidavit.

It also relied on the Karnataka High Court’s decision in Mrs. Zaheda Inamdar v. Fatima Hassina Sayeedha, W.P. No. 3519/2024, which held that permitting an accused to file affidavit evidence was illegal and unsustainable.

Respondent No. 2 had given evidence as DW-1 by affidavit, and the trial court accepted it.

Applying Mandvi Co-operative Bank, the High Court held that this procedure was impermissible.

Because the accused’s affidavit evidence had been received contrary to law, the Court set aside the acquittal and remitted the case so the accused could adduce oral evidence.

It expressly left the merits undecided.

The case was remitted to the trial court to provide the accused an opportunity to adduce oral evidence and then dispose of the case in accordance with law within four months from the parties’ appearance.

The parties were directed to appear before the trial court on 4 November 2026, without further notice.