1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 2060 OF 2010 Hrishikesh Shrikant Pratinidhi ..... Petitioner versus Dhananjay Kurtadkar & anr........ Respondents Mr. S.H. Joshi & Mr. A.S. Pratinidhi adv. For the petitioner Mrs. M.R. Tidake APP for the State. Mr. D.R. More APP for State, CORAM: V. M. KANADE, J. DATED : 20th October, 2010 P.C.: 1. Heard the learned counsel appearing on behalf of the petitioner. None appears on behalf of the respondent though served. Respondent no.1 has sent his written argument by post, which are on record. 2. The petitioner had filed a complaint against the respondent no.1 for offence punishable under sec. 138 of the Negotiable Instrument Act on the dishonour of a cheque given by the accused to the complainant. The trial court convicted the accused for the said offence and sentenced him to suffer S.I. For one month. The accused was also directed to pay compensation of Rs. 7000/- to the complainant and in default of payment of 2 compensation to undergo further S.I. For 15 days. Against this order, the accused preferred an appeal in the Sessions court, Pune. The Sessions Judge by his impugned order dated 17-3-2010 remanded the matter back to the trial court after setting aside the order of conviction with a direction to permit both the accused and the complainant to lead further evidence. The learned counsel appearing on behalf of the petitioner submitted that the accused had filed an affidavit in lieu of evidence in the trial court. The trial court, however did not consider the said evidence, since the accused did not remain present for cross examination. Secondly he submitted that in view of the judgment of the Apex Court in the case of Mandvi Co-operative Bank Ltd. Vs. Nimesh B. Thakore reported in 2010(4) Mh.L.J. Page 220, the accused does not have any right to file the affidavit in lieu of evidence. It was therefore submitted that the Sessions Court had erred in remanding the matter back. He submitted that the Sessions court was also not justified in permitting the accused to lead evidence after conclusion of the case before the trial court. He submitted that no evidence has been assigned by the Sessions Court while coming to the said conclusion. 3. In my view there is substance in the submission of the learned counsel appearing on behalf of the petitioner. In the case of Mandvi Co-operative Bank Ltd. Vs. Nimesh B. Thakore reported in 2010(4) Mh.L.J. Page 220, the Apex Court has held that under section 145(2) of the Negotiable Instruments Act, the complainant 3 alone has right to file affidavit in lieu of evidence, and such a course of filing affidavit in lieu of evidence cannot be adopted by the accused. This being the settled legal position, it was not open for the accused to file his affidavit in lieu of evidence. He had ample opportunity of examining himself and his other witnesses in the trial court. The Sessions court therefore, in my view, has committed an error in remanding the matter back for fresh trial. The impugned order passed by the Sessions court dated 17-3-2010 is therefore quashed and set aside. The matter is remanding back to the Sessions Court with a direction to decide the appeal as expeditiously as possible on merit and in accordance with the law. (V. M. KANADE, J.)