Madhya Pradesh High Court
Sunil Agrawal vs Nitin Kumar Badhwani on 24 February, 2026
NEUTRAL CITATION NO. 2026:MPHC-JBP:17593
1 MCRC-49685-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE HIMANSHU JOSHI
ON THE 24th OF FEBRUARY, 2026
MISC. CRIMINAL CASE No. 49685 of 2024
SUNIL AGRAWAL
Versus
NITIN KUMAR BADHWANI
Appearance:
Shri Aman Patel - Advocate for the petitioner.
Shri Om Prakash Tripathi, learned counsel for the respondent .
ORDER
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
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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
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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 :
” 8. Hon’ble Apex Court in the case of Indian Bank Association
and others (supra) after discussing the judgment passed in the case
of Mandvi Co-operative Bank Limited (supra), laid down the
directions in para-23 which are as follows :”23. Many of theSignature Not Verified
Signed by: JASLEEN SINGH
SALUJA
Signing time: 13-03-2026
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directions given by the various High Courts, in our view, are
worthy of emulation by the Criminal Courts all over the country
dealing with cases under Section 138 of the Negotiable
Instruments Act, for which the following directions are being
given :-
23.1. The Metropolitan Magistrate/Judicial Magistrate (MM/JM),
on the day when the complaint under Section 138 of the Act is
presented, shall scrutinize the complaint and, if the complaint is
accompanied by the affidavit,and the affidavit and the documents,
if any, are found to be in order, take cognizance and direct
issuance of summons.
23.2. The MM/JM should adopt a pragmatic and realistic approach
while issuing summons.Summons must be properly addressed and
sent bypost as well as by e-mail address got from the complainant.
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
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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:
“7. The substance of the petition is that if viewed in the light of
the object of insertion of the provisions contained in section 143
to 147 of the NI Act, 1881, by Act, 55 of 2002, the accused also
has a right to adduce his evidence on an affidavit. The learned
Metropolitan Magistrate was in error in declining to accept such
evidence on affidavit by placing reliance on the decision of the
Supreme Court in the case of Mandvi Cooperative bank Limited v.
Nimesh . Thakore, (2010) 3 SCC 83, as the subsequent judgment
of the Supreme Court in the case of Indian Bank Association v.
Union of India, (2014) 5 SCC 590, had further expanded the scope
of provisions contained in section 145 of the NI Act, 1881, with a
view to give impetus for expeditious conclusion of the
proceedings under section 138 of NI Act, 1881 and the said
decision was not properly construed by the learned Magistrate.
Thus, to advance the object of the provisions contained in sections
143 and 145 of the NI Act, 1881, the petitioners/accused deserve
to be permitted to adduce the evidence on an affidavit.
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.
Signature Not Verified
Signed by: JASLEEN SINGH
SALUJA
Signing time: 13-03-2026
17:41:56
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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