This petition under Section 482 of the Code of Criminal Procedure, 1973 (now Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023) has been filed by the petitioner/accused being aggrieved by the order dated 26.10.2024 passed by the learned Special Judge (POCSO Act), District Satna in CRR No.114/2024 affirming the order dated 30.09.2024 passed by the Judicial Magistrate First Class, Satna in Case No. NIA-296/2018, whereby the learned trial Court rejected the application filed by the petitioner under Section 145(2) of the Negotiable Instruments Act, 1881 read with Section 296(2) of Cr.P.C. seeking permission to tender his examination-in-chief by way of affidavit at the stage of defence evidence.

2. Brief facts of the case are that the respondent/complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the petitioner on 12.03.2018. The matter is pending before the learned JMFC, Signature Not Verified Signed by: JASLEEN SINGH SALUJA Signing time: 13-03-2026 17:41:56 NEUTRAL CITATION NO. 2026:MPHC-JBP:17593 2 MCRC-49685-2024 Satna and has reached the stage of defence evidence. During defence stage, the petitioner moved an application under Section 145(2) of the N.I. Act read with Section 296(2) Cr.P.C. praying that his examination-in-chief be taken on affidavit. The learned trial Court rejected the application vide order dated 30.09.2024 holding that the accused is required to enter the witness box if he intends to depose and cannot file affidavit evidence as a matter of right. The revision preferred by the petitioner under Section 397 Cr.P.C. was dismissed by the learned Sessions Court on 26.10.2024. Hence, the present petition.

3. Learned counsel for the petitioner submits that the Learned Trial Court erred in law by relying upon Mandvi Co-operative Bank Ltd. v. Manish B. Thakore , reported in 2010(3) SCC 83 while failing to consider the subsequent directions issued by the Hon'ble Supreme Court in Indian Bank Association & Ors. v. Union of India & Ors. reported in 2014(5) SCC 590 , which govern the procedure in complaints under Section 138 of the Negotiable Instruments Act. The Trial Court further failed to consider Rakeshbhai Maganbhai Barot Vs. State of Gujarat , reported in 2019(1) Crimes 575 wherein the Hon'ble Gujarat High Court, after considering the above Supreme Court judgments, held that affidavit evidence of the accused ought to be received. The impugned order is contrary to the settled legal position. Learned Trial Court did not properly appreciate Section 296 CrPC / Section 332 BNSS, which permits evidence of a formal character to be given by affidavit and mandates summoning of the deponent upon application by either party. The Trial Court wrongly relied upon SBI Global Factors Ltd. v. State of Maharashtra , reported in 2022(1) Mah. LJ 384 while ignoring Signature Not Verified Signed by: JASLEEN SINGH SALUJA Signing time: 13-03-2026 17:41:56 NEUTRAL CITATION NO. 2026:MPHC-JBP:17593 3 MCRC-49685-2024 binding precedents of the Hon'ble Supreme Court and the Hon'ble High Court. Learned Trial Court also failed to consider Section 145(2) of the Negotiable Instruments Act, which empowers and obligates the Court to summon and examine a person whose affidavit evidence is tendered, upon application by either party.

4. On the other hand, learned counsel for the respondent opposed the petition and supported the judgement 30.09.2024 and order dated 26.10.2024.

5. Heard the learned counsel for the parties and perused the record of the case with the assistance of the parties.

6. A perusal of the order impugned dated 30/09/2024 (Annexure A/5) passed by the trial court revels that the while dismissing the application of the accused for filing affidavit on oath, the trial court has referred the judgment passed in the matter of SBI Global Factories Ltd. Vs State of Maharastra reported in 2022 MPLJ (2) 43 dated 03/03/2021 stating that this judgment has been passed after passing of the judgment of Vaibhav Khare Vs. Kamal Kishore Arya (M.Cr.C.No.10709/2020 ) judgment of this court. In Vaibhav Khare (supra) this court has allowed the plea of the accused and permitted the accused to file affidavit considering both land mark judgements of Indian Bank Association & Others (supra) and also Mandvi Co-operative Bank Limited (supra). Para 8 of the judgement of Vaibhav Khare Vs. Kamal Kishore Arya (M.Cr.C.No.10709/2020 ) reads thus :

The Court, in appropriate cases,may take the assistance of the police or the nearby Court to serve notice on the accused. For notice of appearance, a short date be fixed. If the summons is received back un-served, immediate follow up action be taken. 23.3. The Court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, Court may pass appropriate orders at the earliest.

23.4 Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for re- calling a witness for cross-examination."

23.5. The Court concerned must ensure that examination-in-chief, cross- examination and re-examination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses instead of examining them in the Court. The witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the Court."(emphasis supplied) A bare perusal of the directions incorporated in the above para- 23.5, it clearly reflects that trial Court has option of accepting affidavit of the witnesses of accused and if there is a clear direction of the trial Court for filing the affidavit to the accused, then accused is permitted to give evidence on affidavit.

7. This makes it very clear that the Hon'ble Apex Court has laid down specific directions to conduct the matter of 138 Negotiable Instruments Act . in para 23.5, it has been clearly instructed that trial court has option of accepting affidavit of the witnesses of accused and if there is a clear direction of the trial court for filing the affidavit to the accused, then accused Signature Not Verified Signed by: JASLEEN SINGH SALUJA Signing time: 13-03-2026 17:41:56 NEUTRAL CITATION NO. 2026:MPHC-JBP:17593 5 MCRC-49685-2024 is permitted to give evidence on affidavit.

8. A similar view has been taken by the Bombay High Court in Viral Enterprises v. State of Maharashtra , 2024 SCC OnLine Bom 1774 , in a batch of petitions which deal with the very same issue. This Judgment makes reference to Mandvi Co-op Bank Ltd. (supra) and Indian Banks Association & Ors. v. Union of India reported in (2014) 5 SCC 590 and has held as under:

9. In such circumstances, this court finds that the learned courts below have committed error in not relying upon the Supreme Court verdict passed in the matter if Indian Bank Association Vs. Union of India (Supra) . Thus, the order dated 26/10/2024 (Annexure P/7) passed in CRR 114/2014 by the revisional court and order dated 30/09/2024 (Annexure P/5) passed in NIA 296/2018 by the JMFC are hereby set aside. The petition is allowed and the petitioner is permitted to submit his affidavit before the concerned Court.

NEUTRAL CITATION NO. 2026:MPHC-JBP:17593 6 MCRC-49685-2024 The petitioner is directed to remain present before the trial Court for cross examination, whenever, the learned trial court directs him to appear.

10. With this observation the petition stands allowed.

(HIMANSHU JOSHI) JUDGE Jasleen Signature Not Verified Signed by: JASLEEN SINGH SALUJA Signing time: 13-03-2026 17:41:56