ORDER 1. Instant misc. petition has been filed against the order dated 10.01.2023 passed by learned Additional Sessions Judge No.2, Jodhpur Metropolitan whereby the learned Judge dismissed the revision petition and affirmed the order dated 14.07.2022 passed by learned Metropolitan Magistrate (N.I. Act) Cases No.7, Jodhpur Metropolitan by which the application filed by the petitioner under Section 315 Cr.P.C. read with Section 145(2) of N.I. Act has been dismissed. 2. Brief facts of the case are that the complainant filed a complaint before the Metropolitan Magistrate under Section 138 of N.I. Act with regard to dishonouring of Cheque No. 000234 dated 21.09.2016 darawn on DCB Bank, Branch Jodhpur for a sum of Rs. 5,00,000/-. During the trial, the respondent no.1 Rahul Jain examined himself in evidence and documents were also filed. After examination of complainant, the petitioner accused filed an application under Section 315 Cr.P.C read with Section 145(2) of N.I. Act stating therein that in his defence, he wants to give his evidence on affidavit. 3. After considering the arguments of both the parties, the learned Metropolitan Magistrate dismissed the application filed by the petitioner vide order dated 14.07.2022. The petitioner filed a revision petition against the said order before the learned Additional Sessions Judge No.2, Jodhpur Metropolitan which too was dismissed vide order dated 10.01.2023. 4. Counsel for the petitioner submits that the petitioner had prayed before the learned Court below to permit him to submit his statement as a witness, on affidavit, as under Section 145(1) of the Act of 1881, which came to be dismissed, which as per learned counsel for the petitioner, was wholly illegal. Learned counsel for the petitioner placed reliance on the ratio as laid down by the Hon'ble Apex Court in the judgment of Indian Bank Association & Ors. v. Union of India reported in (2014) 5 SCC 590 and judgment of Hon'ble Apex Court in the case of Mandvi Cooperative Bank Ltd Vs. Nimesh B. Thakore reported in (2010) 3 SCC 83 . 5. Learned Public Prosecutor and counsel for the respondent supported the impugned orders and submitted that both the courts below have discussed each and every aspect of the matter and have rightly rejected the application and revision petition respectively, which does not called for any interference. Nimesh B. Thakore reported in (2010) 3 SCC 83 . 5. Learned Public Prosecutor and counsel for the respondent supported the impugned orders and submitted that both the courts below have discussed each and every aspect of the matter and have rightly rejected the application and revision petition respectively, which does not called for any interference. It is argued that the Court had already permitted the petitioner to appear as defence witness but the petitioner by insisting to submit submit the affidavit in the first instance, only wants to delay the matter. Learned counsel for the respondent also drew the attention of this Court to the judgment rendered by the Hon'ble High Court of Gujarat in the case of Soni Anilkumar Prahladbhai vs. State of Gujarat (R/Special Criminal Application No. 4888 of 2022, decided by the Hon'ble Gujarat High Court at Ahmedabad on 06.06.2022). 6. Heard the learned counsel for the parties and perused the orders impugned so also the record. 7. In the first instance, it is relevant to quote Section 145 of Negotiable Instruments Act :- "145. Evidence on affidavit.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding 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." 8. Sub-Section (1) of Section 145 of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. Thus, a new procedure has been provided under this provision enabling the complainant to give his evidence on affidavit and if such affidavit is filed it shall be treated to be evidence for the purpose of enquiry, trial or other proceeding under the Code of Criminal Procedure. Thus, a new procedure has been provided under this provision enabling the complainant to give his evidence on affidavit and if such affidavit is filed it shall be treated to be evidence for the purpose of enquiry, trial or other proceeding under the Code of Criminal Procedure. On the other hand, Subsection (2) of Section 145 of the Act provides that 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. Under this provision that the trial Court has been empowered to summon and examine a person who has filed his affidavit as evidence, if an application for that purpose is filed either on behalf of the prosecution or the accused. 9. Sub-Section (2) of Section 145 of the Act came for consideration before the Hon'ble Supreme Court in the case of Radhey Shyam Garg v. Naresh Kumar Gupta reported in 2010 Cr.L.J. 2819. Hon'ble Court in the aforesaid case observed thus:-- "Under S. 145 of the Code subject to just exception may allow the complainant to give evidence by way of affidavit. Such an evidence by way of affidavit had been made admissible in evidence in any enquiry, trial or other proceedings under the Code. Whereas Subsection (1) of S. 145 uses the term 'may' Sub-section (2) thereof uses the term "shall". The first part of the aforementioned provision must be read with Subsection (1) of S. 145. It therefore merely points out to the discretionary power of the Court conferred upon it by reason thereof. The Court however has no other option but to summon and examine any person who has given evidence on affidavit as to the facts contained therein if an application is filed either by the prosecution or the accused. Section 145 must be read reasonably. If affidavit in terms of the provisions of S. 145 of the Act is to be considered to be an evidence it is difficult to comprehend as to why the Court will ask the deponent of the said affidavit to examine himself with regard to the contents thereof once over again. He may be cross-examined and upon completion of his evidence he may be re-examined. He may be cross-examined and upon completion of his evidence he may be re-examined. Thus the words "examine any person giving evidence on affidavit as to the facts contained therein in the event the deponent is summoned by the Court in terms of Sub-section (2) of S. 145 of the Act" would mean for the purpose of cross-examination. The provision seeks to attend the salutary purpose. The object of enactment of the said provision is for the purpose of expedition of the trial. The deponent cannot be summoned again under S. 145(2) for his examination-in-chief." 10. Thus, it has been clarified by the Hon'ble Apex Court that summoning of a person by the trial Court in terms of Sub-section (2) of Section 145 of the Act would be for the purpose of crossexamination only. 11. Hon'ble Apex Court in the case of Mandvi Cooperative Bank Ltd (supra) has held as under :- "46. On this issue, we are afraid that the High Court overreached itself and took a course that amounts to taking-over the legislative functions. 32. On a bare reading of section 143 (sic 145) it is clear that the legislature provided for the complainant to give his evidence on affidavit and did not provide for the accused to similarly do so. But the High Court thought that not mentioning the accused along with the complainant in sub-section (1) of section 145 was merely an omission by the legislature that it could fill up without difficulty. Even though the legislature in their wisdom did not deem it proper to incorporate the word 'accused' with the word 'complainant' in section 145(1), it did not mean that the Magistrate could not allow the accused to give his evidence on affidavit by applying the same analogy unless there was a just and reasonable ground to refuse such permission. There are two errors apparent in the reasoning of the High Court. First, if the legislature in their wisdom did not think "it proper to incorporate a word 'accused' with the word 'complainant' in section 145(1)....", it was not open to the High Court to fill up the self perceived blank. Secondly, the High Court was in error in drawing an analogy between the evidences of the complainant and the accused in a case of dishonoured cheque. Secondly, the High Court was in error in drawing an analogy between the evidences of the complainant and the accused in a case of dishonoured cheque. The case of the complainant in a complaint under section 138 of the Act would be based largely on documentary evidence. The accused, on the other hand, in a large number of cases, may not lead any evidence at all and let the prosecution stand or fall on its own evidence. In case the defence does lead any evidence, the nature of its evidence may not be necessarily documentary; in all likelihood the defence would lead other kinds of evidences to rebut the presumption that the issuance of the cheque was not in the discharge of any debt or liability. This is the basic difference between the nature of the complainant's evidence and the evidence of the accused in a case of dishonoured cheque. It is, therefore, wrong to equate the defence evidence with the complainant's evidence and to extend the same option to the accused as well." 12. Thus, Hon'ble Apex Court in the case of Mandvi Co operative Bank Limited (supra), held that accused cannot be permitted to file affidavit under Section 145(1) of Negotiable Instruments Act. 13. 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 the 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 by post 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. 23.2. The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post 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 recalling a witness for cross-examination." 23.5. The Court concerned must ensure that examination-in-chief, cross-examination and reexamination 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." 14. Thus, the Hon'ble Apex Court in the above case, has only issued certain directions for speedy disposal of cases under Section 138 of Negotiable Instruments Act and it has nowhere been held that an accused can give his evidence on affidavit. Moreover, the trial court has already mentioned that the petitioner may examine himself as a defence witness but the petitioner wants to give evidence on affidavit, which seems only to delay the matter. Therefore, I do not find any illegality or perversity in the impugned orders. Consequently, the misc. petition is, hereby, dismissed. The stay application also stands dismissed.