Can a remand for fresh trial on the Mandvi dictum be ordered where the accused never alleged prejudice?

Negotiable Instruments Act, 1881 — s.138 — s.145 — Remand for fresh trial — Prejudice —

Negotiable Instruments Act, 1881 — s.145 — Mandvi dictum — Prejudice to the accused —

Held: A remand for fresh trial on the Mandvi dictum that an accused cannot be examined on affidavit cannot be ordered where the accused never alleged prejudice before the Trial Court or the First Appellate Court; the dictum applies only where prejudice is in fact caused to the accused in a completed trial. Order of remand set aside. (¶6, 7, 9)

Can a remand for fresh trial on the Mandvi dictum be ordered where the accused never alleged prejudice?

No. This Court's dictum in the Mandvi Cooperative Bank case, that an accused cannot be examined on affidavit, applies only where prejudice is in fact caused to the accused in a completed trial. The accused never alleged prejudice before the Trial Court or the First Appellate Court, and the signature on the cheque was admitted; the order remanding the trial from the stage of defence evidence on that ground was accordingly set aside. [¶6, ¶7, ¶8]

What did the Supreme Court finally decide?

The appeal was allowed and the order of the learned Single Judge remanding the matter for fresh trial was set aside. The revision, Crl. R.P. No.715 of 2023, was restored to the files of the High Court to be considered on its own merits; the evidence led at the trial shall only be considered if the Trial Court has examined the accused in person, and shall otherwise be eschewed. [¶9, ¶10]

“4. The issue, in a narrow compass, is as to whether the remand order was proper on the ground raised at the stage of revision, when there is no plea of prejudice taken by the accused. The cited decision, on a detailed consideration of Section 145 of the NI Act held that sub-section (1) provides that the evidence of the complainant may be given by him on affidavit which was also to be read in evidence in any enquiry, trial or other proceeding under the Cr.PC, subject to all just exceptions. The provision enables only the complainant’s chief examination to be in affidavit. As far as sub-section (2) is concerned, it was held to be a discretion of the Court to call a person giving evidence to do so on affidavit and to examine him as to the facts contained therein. However, if any application is made, either by the prosecution or by the accused that the person giving his evidence on affidavit should be called in person, to be again examined as to the facts contained therein, it must be done.”

“6. The dictum has to be applied in a criminal case, specifically with reference to the prejudice caused to the accused in a completed trial. In the present case, the reading of the order of the learned Magistrate would indicate that the accused, examined as DW-1 contended that a signed blank cheque leaf was given as security for loan of Rs.10 lakhs, transferred by the complainant to the account of the accused. The cheque presented was for an amount of Rs.30 lakhs. It was also the contention of the accused that on the alleged date of handing over of Rs.20 lakhs and on the date on which the cheque was issued; the evidence of PW-1, the complainant having been corroborated by PW-2, the complainant was not in station and was at Bengaluru. However, no substantive evidence regarding the unavailability of the complainant was proffered before Court. The learned Magistrate clearly observed that the accused could very well have obtained the Call Data Records (CDRs) of the mobile of the complainant to establish his absence.”

“7. The accused never alleged a prejudice before the Trial Court or before the First Appellate Court. The signature was admitted and the presumption applies squarely which has not been rebutted.”

“8. Before the High Court, the accused has merely by reason of the ingenuity of the lawyer, taken a contention which was erroneously accepted by the learned Single Judge, according to us. The plea of prejudice looms large and is stark in the above case by its absence.”

“9. The learned Senior Counsel appearing for the respondent would submit that in fact, the trial was resumed at the stage of defence evidence and completed. But that is of no consequence when we set aside the order of the learned Single Judge impugned in this appeal, which we do set aside. As pointed out by the learned Senior Counsel, still the other contentions are available. In these circumstances, we restore Crl. R.P. No.715 of 2023 to the files of the High Court, which shall be considered on its own merits. However, the evidence led at the trial initially shall only be considered, if at all, the Trial Court has examined the accused in person, subsequently the same shall be eschewed.”