2. The petitioner herein is the accused in the Trial Court. The petitioner herein has filed an application under Section 145 of Negotiable Instruments Act, 1881 before the Trial Court to adduce evidence on affidavit.
3. The learned Magistrate by an order dated 20.12.2004 dismissed the said application by holding that Proviso (2) of Section 145 does not enable the accused to adduce evidence on affidavit and the said application was filed to protract the proceedings.
4. Aggrieved against the said order, the above Criminal Revision Petition is filed. The learned counsel for the revision petitioner would submit that Section 145 Proviso (1) enables the complainant to give evidence on affidavit. The learned counsel would further add that the complainant and the accused should be treated on par and as such the accused shall examine him on affidavit and accordingly prays to set aside the order of the Court below.
5. To resolve the issue involved, it is useful to extract the relevant provision, viz., Section 145 of the Negotiable Instruments Act, 1881 which reads as follows:
“Evidence on affidavit: (1) Notwithstanding anything contained in the Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and; may, subject to all just exception be read in evidence in any enquiry, trial or other proceedings 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.
6. On a perusal of the above provision, it makes clear that Proviso (1) to Section 145 enables the complainant to adduce evidence on affidavit, whereas Proviso (2) to Section 145 do not proceed in the same manner as provided under Proviso (1). Section 145(2) of the Act enables either the prosecution or the accused to file an application for the purpose of examining any person giving evidence on affidavit. If the intention of the legislature is to enable the accused also to give evidence on affidavit, the Proviso (2) of Section 145 would have been worded similar to Proviso (1). Inasmuch as different languages is used in both the provisions, it cannot be contended that the benefit conferred upon the complainant under Section 145 Proviso (1) is available to the accused also, namely examining himself to adduce evidence on affidavit.
7. Further the legislature in its dictum had thought it fit not to treat the complainant and the accused on par. Accordingly the complainant can adduce evidence on affidavit under Section 145(1) of the Negotiable Instruments Act, if there is any difficulty for him to make himself available to adduce evidence. On the contrary the accused who is facing the prosecution shall not claim the similar benefit as that of the complainant; and that is the reason why the Proviso (2) is not worded similar to that of Proviso (1) of Section 145 of the Negotiable Instruments Act.
8. In the light of reasons as stated above, I am of the opinion that the application is maintainable in law and accordingly the Criminal Revision is dismissed. Consequently the Crl.M.P No. 711 of 2005 is also dismissed.