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2024 DIGILAW 641 (BOM)

Viral Enterprises v. State of Maharashtra

2024-06-10

N.J.JAMADAR

body2024
JUDGMENT N. J. Jamadar, J. - Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, heard finally. 2. The following question of law is sought to be raised in all these petitions, which arises in the backdrop of almost identical facts. 'Whether a person who is an accused in complaint for an offence punishable under section 138 of NI Act, 1881 is entitled to give evidence on an affidavit as provided under section 145 of the NI Act, 1881 ?' 3. The bare minimum facts required to be noted to determine the aforesaid question of law can be summarized as under:- The original complainant-Respondent No. 2, in each of the petitions, filed complaints for commission of offence punishable under section 138 of Negotiable Instruments Act, 1881 (NI Act, 1881) alleging issue, presentment and dishnour of the cheques, drawn by the petitioners and the failure of the petitioners to pay the amount covered by the cheques despite service of the demand notice within the stipulated period. The complainant adduced evidence and upon completion of the evidence, the statement of the accused, under section 313 of the Code of Criminal Procedure, 1973 came to be recorded. In the said examination under section 313 of the Code, the petitioner No.2/ accused stated that, he would examine himself on oath and also lead evidence in defence. 4. The petitioners, thereafter, tendered an affidavit in lieu of examination in chief of petitioner No. 2. The respondent No. 2-complainant objected to the leading of evidence on an affidavit by the accused on the premise that the accused has no right to adduce evidence by way of affidavit under section 145 of the NI Act, 1881. 5. By the impugned order, the learned Metropolitan Magistrate declined to accept the evidence of the accused on an affidavit, while granting liberty to the accused to examine himself on oath in the witness box. 6. Being aggrieved, the petitioners-accused have invoked writ jurisdiction. 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. 6. Being aggrieved, the petitioners-accused have invoked writ jurisdiction. 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 vs. Nimesh B. Thakore, (2010) 3 Supreme Court Cases 83 as the subsequent judgment of the Supreme Court in the case of Indian Bank Association and Ors. vs. Union of India and Ors., AIR 2014 Supreme Court 2528 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. 8. I have heard Mr. Mangesh Patel, learned counsel for the petitioner, Mr. S.R. Agarkar, learned APP for the State and Mr. Jatin Karia (Shah), learned counsel for respondent No. 2. 9. At the outset, Mr. Karia, learned counsel for respondent No. 2 submitted that the aforesaid question sought to be raised by the petitioner/accused is no longer res integra. The question stands firmly concluded against the accused by the decision of the Supreme Court in the case of Mandvi Cooperative bank (supra). Moreover, this Court in the cases of SBI Global Factors Limited vs. The State of Maharashtra and Ors., 2021 SCC OnLine Bom 365 and Nitin Shriram Sabe vs. Prakashrao Keshavrao Deshmukh , Cri. WP.No. 718 of 2022, has repelled the endeavour of the accused, who are facing the prosecution under section 138 of NI Act, to reopen the issue on the ground of subsequent judgment in the cases of Indian Bank Association (supra), and the judgment of Gujrat High Court in the case of Rakeshbhai Maganbhai Barot vs. State of Gujrat, Laws (GJH) 2019 121. Thus, this petition being devoid of substance and having been filed with a view to delay the disposal of the complaints, deserves to be summarily dismissed.. 10. Mr. Mangesh Patel, the learned counsel for the petitioner, joined the issue by canvassing a submission that the objection based on the decision in the case of Mandvi Cooperative bank (supra) overlooks the subsequent decision in the case of Indian Bank Association (supra). Mr. Patel made an endeavour to persuade the Court to hold that Supreme Court in the case of Indian Bank Association (supra) gave its imprimatur to the proposition that even an accused can adduce his evidence of an affidavit. Indian Bank Association (supra) being a subsequent judgment of co-equal strength, the latter commands more precedential value. Mr. Patel laid particular emphasis on the direction No. 5 issued by the Supreme Court in the case of Indian Bank Association (supra). 11. Mr. Patel further urged that the learned single judges of this Court in the cases of SBI Global Factors Limited (supra) and Nitin Sabe (supra) have not correctly appreciated the true import of the decision of the Supreme Court in the case of Indian Bank Association (supra). On the contrary, Gujrat High Court, in the case of Rakeshbhai Barot (supra) and Karnataka High Court in the case of Afzal Pasha vs. Mohamed Ameerjan , Cri. Petition No. 1684 of 2016, Dt. 09/08/2016. have appreciated the ratio of the judgment of Indian Bank Association (supra) in a correct perceptive as it advances the object of inserting section 145 of the NI Act, 1881. 12. Mr. Patel further urged, the omission to include the word 'accused' in section 145 of the NI Act, 1881 is for an obvious reason which the learned single Judges of the Karnataka High Court and Gujrat High Court have expounded in the aforesaid decision. It was further urged that, at any rate, no element of prejudice is likely to be caused to the complainant if the accused is permitted to adduce evidence on an affidavit. The complainant would have effective opportunity to cross examine the accused. Therefore, a procedure which advances the cause of expeditious conclusion of the complaint under section 138 of NI Act, 1881 deserves to be preferred, submitted Mr. Patel. 13. The complainant would have effective opportunity to cross examine the accused. Therefore, a procedure which advances the cause of expeditious conclusion of the complaint under section 138 of NI Act, 1881 deserves to be preferred, submitted Mr. Patel. 13. In the case of SBI Global Factors Limited (supra) and Nitin Sabe (supra), the learned single judge of this Court have held that the question sought to be raised by the accused, like petitioner herein, is no longer res integra and stands concluded by the decision of the Supreme Court in the case of Mandvi Cooperative bank (supra). At the outset, it must be noted these decisions, being rendered by co-ordinate Benches, bind this Court. 14. Mr. Patel made a strenuous effort to demonstrate that the issue cannot be said to have been concluded by the judgment in the case of Mandvi Cooperative bank (supra) as the scope of section 145 of the NI Act, 1881 was further expanded by the Supreme Court in the case of Indian Bank Association (supra) and, therefore, this Court, if warranted, may refer the issue to a larger Bench. 15. I have given anxious consideration to the submissions canvassed on behalf of the parties. In view of the submission canvassed by Mr. Patel, on the premise that Indian Bank Association (supra) deviates from the decision in the case of Mandvi Cooperative bank (supra), I deem it appropriate to consider the issue sought to be raised in this petition in the light of the text and context of the provisions contained in sections 143 and 145 of the NI Act, 1881. With the insertion of Chapter XVII into NI Act, 1881, there was an exponential increase in the complaints under section 138 of NI Act, 1881 putting enormous strain on the criminal justice administration system. The Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 introduced sections 143 to 147 in Chapter XVII in addition to a number of changes in Sec.138, 141 and 142 of NI Act, 1881, as they stood then. 16. Section 143 of the NI Act, 1881 empowered the Court to try the case summarily. Section 144 liberalized method of service of summons. Section 145, with which we are primarily concerned with, enabled the Court to record the evidence of the complainant on an affidavit. Section 146 provided that the bank's slip would be prima facie evidence of dishonour of cheque. Section 144 liberalized method of service of summons. Section 145, with which we are primarily concerned with, enabled the Court to record the evidence of the complainant on an affidavit. Section 146 provided that the bank's slip would be prima facie evidence of dishonour of cheque. Section 147 made the offences under the Act compoundable. 17. The statement of objects and reasons appended to the Bill, inter alia, noted that not only the punishment provided in the Act had proved to be inadequate, the procedure prescribed for the Courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act. Clauses (iv) to (vi) of the statement of objects and reasons deserve to be noted. They read as under:- (iv) To prescribe procedure for dispensing with preliminary evidence of the complainant. (v) To prescribe procedure for servicing of summons to the accused or witness by the Court through speed post or empanelled private couriers. (vi) To provide for summary trial of the cases under the Act with a view to speeding up disposal of cases. 18. Evidently, the Parliament intervened to give impetus to expeditious disposal of the complaints under section 138 of the NI Act, 1881, by unshackling the Courts with procedural constraints prescribed under the Code, 1973. Yet, the Parliament, as is evident from the text of section 145, adopted a restrained approach in the matter of recording of evidence on affidavit and restricted it to the complainant. Immediately after the insertion of section 145 in NI Act, 1881 questions were raised as to whether the omission of the word, 'accused' was conscious and deliberate or despite such omission the Courts can permit even the accused to adduce the evidence on an affidavit. 19. This Court while dealing with a large number of petitions wherein the various facets of the amended provisions of NI Act, 1881 came up for consideration, inter alia, held that the evidence in defence like the complainant's evidence also be given on an affidavit. 19. This Court while dealing with a large number of petitions wherein the various facets of the amended provisions of NI Act, 1881 came up for consideration, inter alia, held that the evidence in defence like the complainant's evidence also be given on an affidavit. When the matter went in appeal before the Supreme Court, in the case of Mandvi Cooperative bank (supra), the Supreme Court, inter alia, considered the following question :- 'Whether the right to give evidence on affidavit as provided to the complainant under Section 145(1) of the Act is also available to the accused ? ' 20. After an elaborate analysis, the Supreme Court held that this Court had overreached itself and took the course that amounts to taking over legislative functions. The observations of the Supreme Court in paragraph Nos. 44 to 48 and 52 are instructive and, hence, extracted below. 44] Coming now to the last question with regard to the right of the accused to give his evidence, like the complainant, on affidavit, the High Court has held that subject to the provisions of sections 315 and 316 of the Code of Criminal Procedure the accused can also give his evidence on affidavit. The High Court was fully conscious that section 145(1) does not provide for the accused to give his evidence, like the complainant, on affidavit. But the High Court argued that there was no express bar in law against the accused giving his evidence on affidavit and more importantly providing a similar right to the accused would be in furtherance of the legislative intent to make the trial process swifter. 45] In para 29 of the judgment, the High Court observed as follows: "It is true that section 145(1) confers a right on the complainant to give evidence on affidavit. It does not speak of similar right being conferred on the accused. The Legislature in their wisdom may not have thought it proper to incorporate a word 'accused' with the word 'complainant' in sub-section (1) of section 145 in view of the immunity conferred on the accused from being compelled to be a witness against himself under Article 20(3) of the Constitution of India...." Then in paragraph 31 of the judgment it observed: ". Merely because, section 145(1) does not expressly permit the accused to do so, does not mean that the Magistrate cannot allow the accused to give his evidence on affidavit by applying the same analogy unless there is just and reasonable ground to refuse such permission. There is no express bar on the accused to give evidence on affidavit either in the Act or in the Code. I find no justified reason to refuse permission to the accused to give his evidence on affidavit subject to the provisions contained in sections 315 and 316 of the Code." 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. On a bare reading of section 143 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. 47] 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. The case of the complainant in a complaint under section 138 of the Act would be based largely on documentary evidence. 48] 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. The case of the complainant in a complaint under section 138 of the Act would be based largely on documentary evidence. 48] 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. 52] In light of the above we have no hesitation in holding that the High Court was in error in taking the view, that on a request made by the accused the magistrate may allow him to tender his evidence on affidavit and consequently, we set aside the direction as contained in sub-paragraph (r) of paragraph 45 of the High Court judgment. The appeal arising from SLP (Crl.) No. 3915/2006 is allowed. 21. Indian Bank Association and Others filed Writ Petition before the Supreme Court under Article 32 of the Constitution of India seeking appropriate guidelines, directions to be followed by all the Courts dealing with complaints under section 138 of NI Act, 1881 so as to ensure expeditious disposal of the complaints. In Indian Bank Association (supra), the Supreme Court took note of the decision in the case of Mandvi Cooperative bank (supra) and issued a number of directions. Direction 5, on which Mr. Patel placed very strong reliance, reads as under:- (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 Court. Witnesses to the complainant and accused must be available for cross-examination as and when there is direction to this effect by the Court. (emphasis supplied) 22. Special emphasis was laid on the observations, 'the Court has option of accepting affidavits of the witnesses. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complainant and accused must be available for cross-examination as and when there is direction to this effect by the Court. (emphasis supplied) 22. Special emphasis was laid on the observations, 'the Court has option of accepting affidavits of the witnesses. The word 'witnesses', according to Mr. Patel, subsumes in its fold an accused. Therefore Indian Bank Association (supra) expands the scope of section 145 and permits the Court to record the evidence of accused on affidavit. To this extent, the Indian Bank Association (supra) deviates from the decision of the Supreme Court in the case of Mandvi Cooperative bank (supra). 23. To bolster up the aforesaid submission, Mr. Patel invited the attention of the Court, to the decision of the Gujrat High Court in the case of Rakeshbhai Barot (supra) and Karnataka High Court in the case of Afzal Pasha (supra). 24. I have perused the judgments in the cases of Rakeshbhai Barot (supra) and Afzal Pasha (supra). Rakeshbhai Barot (supra) substantially followed the reasoning of the decision of the Karnataka High Court in the case of Afzal Pasha (supra). It would, therefore, be expedient to extract the observations in the case of Afzal Pasha (supra), which reads as under:- 2) The petition is filed by the accused, against whom a complaint is filed before the court below alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (Hereinafter referred to as the 'NI Act', for brevity). The petitioner is contesting the case. At the stage when the case was set down for the evidence of the accused, he is said to have filed an application under Section 145(2) of the NI Act, seeking permission of the court to file an affidavit in lieu of oral evidence. The trial court having rejected the application on the ground that the same is not permissible, the present petition is filed. 3) The learned counsel for the petitioner places reliance on the language of Section 145 of the NI Act to contend that the trial court has not taken into consideration the intent of the provision, which has been interpreted by the Apex Court in the case of Indian Bank Association v. Union of India, (2014)5 SCC 590 . 5).... 3) The learned counsel for the petitioner places reliance on the language of Section 145 of the NI Act to contend that the trial court has not taken into consideration the intent of the provision, which has been interpreted by the Apex Court in the case of Indian Bank Association v. Union of India, (2014)5 SCC 590 . 5).... Therefore, it is clear that having regard to the Scheme of the CrPC, the legislature in its wisdom has left it open to the accused to exercise the option of examining himself as a witness for an offence punishable under Section 138 of the NI Act, in deliberately omitting any reference to the evidence of the accused by way of affidavit. For it would run against a first principle in criminal law namely, that an accused shall not be called as a witness except on his own request in writing. The evidence on behalf of the accused would include that of the accused, subject to Section 315 CrPC. If the evidence of the witnesses could be by way of affidavit in terms of Section 145 NI Act, the evidence of the accused could also be way of affidavit. A closer scrutiny of Section 145 would indicate that the same is intended to ensure that the trial is concluded as expeditiously as possible. The said provision does not in any manner affect the right of the accused to cross examine the complainant and his witnesses. The said provision enables even the defence evidence to be led by affidavits. Thus, the said provision is purely procedural in nature. In this behalf, the Apex court has in Shreenath v. Rajesh, AIR 1998 SC 1827 , has held that in interpreting any procedural law, where more than one interpretation is possible, the one which curtails the procedure without eluding the justice, is to be adopted. The procedural law is always subservient to and is in aid to justice. (See: KSL Industries v. Khandelwal, 2006(1) Mh.LJ (Cri) 86). The Apex Court in Mandvi Cooperative Bank Limited, (supra), has not examined the matter in the above perspective. On the other hand, the view taken and the directions issued in a more recent decision of the Apex Court, in the case of Indian Bank Association (supra) does contemplate evidence by affidavit by the accused. The Apex Court in Mandvi Cooperative Bank Limited, (supra), has not examined the matter in the above perspective. On the other hand, the view taken and the directions issued in a more recent decision of the Apex Court, in the case of Indian Bank Association (supra) does contemplate evidence by affidavit by the accused. Hence, in keeping with judicial propriety, the later judgment of the Apex court can safely be applied when the divergent view is that of a co-ordinate bench of the same court. 25. Evidently, the Karnataka High Court has proceeded on the premise that the decision of the Supreme Court in the case of Indian Bank Association (supra) takes a divergent view from that of Mandvi Cooperative bank (supra), and Indian Bank Association (supra), being a latter decision, it can be safely applied as both the judgments were rendered by Benches of co-equal strength. 26. Two questions come to the fore. First whether Indian Bank Association (supra) has taken a divergent view ? Second, even if one proceeds on the premise that there is a deviation from the decision in the case of Mandvi Cooperative bank (supra), whether the decision in the case of Indian Bank Association (supra) commands precedential value for being latter in point of time. 27. In the case of Indian Bank Association (supra), after referring to the decision in the case of Mandvi Cooperative bank (supra), the Supreme Court observed, inter alia, as under:- 12] The scope of Section 145 came up for consideration before this Court in Mandvi Cooperative Bank Limited v. Nimesh B. Thakore (2010) 3 SCC 83 , and the same was explained in that judgment stating that the legislature provided for the complainant to give his evidence on affidavit, but did not provide the same for the accused. The Court held that even though the legislature in their wisdom did not deem it proper to incorporate a word 'accused' with the word 'complainant' in Section 145(1), it does not mean that the Magistrate could not allow the complainant to give his evidence on affidavit, unless there was just and reasonable ground to refuse such permission. The Court held that even though the legislature in their wisdom did not deem it proper to incorporate a word 'accused' with the word 'complainant' in Section 145(1), it does not mean that the Magistrate could not allow the complainant to give his evidence on affidavit, unless there was just and reasonable ground to refuse such permission. 16] We have indicated that under Section 145 of the Act, the complainant can give his evidence by way of an affidavit and such affidavit shall be read in evidence in any inquiry, trial or other proceedings in the Court, which makes it clear that a complainant is not required to examine himself twice i.e. one after filing the complaint and one after summoning of the accused. Affidavit and the documents filed by the complainant along with complaint for taking cognizance of the offence are good enough to be read in evidence at both the stages i.e. pre-summoning stage and the post summoning stage. In other words, there is no necessity to recall and re- examine the complaint after summoning of accused, unless the Magistrate passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or under Section 145(2) of the Act suo moto by the Court. In summary trial, after the accused is summoned, his plea is to be recorded under Section 263(g) Cr.P.C. and his examination, if any, can be done by a Magistrate and a finding can be given by the Court under Section 263(h) Cr.P.C. and the same procedure can be followed by a Magistrate for offence of dishonour of cheque since offence under Section 138 of the Act is a document based offence. We make it clear that if the proviso (a), (b) & (c) to Section 138 of the Act are shown to have been complied with, technically the commission of the offence stands completed and it is for the accused to show that no offence could have been committed by him for specific reasons and defences. 28. We make it clear that if the proviso (a), (b) & (c) to Section 138 of the Act are shown to have been complied with, technically the commission of the offence stands completed and it is for the accused to show that no offence could have been committed by him for specific reasons and defences. 28. From a correct reading of the decision in the case of Indian Bank Association (supra), I find it rather difficult to accede to the submission on behalf of the accused that the said decision deviates from the view taken by the Supreme Court in the case of Mandvi Cooperative bank (supra) in the matter of permitting the accused to lead evidence on an affidavit. The question that arose for consideration in the case of Mandvi Cooperative bank (supra) was in the context of the import of amended section 143 and 145 of the NI Act, 1881, in particular. On the contrary, a larger issue of expeditious completion of the trial in the complaints under section 138 of the NI Act, 1881 was the subject matter of the Writ Petition filed by the Indian Bank Association (supra). In that context, the Supreme Court gave certain directions. However, despite noting the decision in the case of Mandvi Cooperative bank (supra), especially the fact that the provisions contained in section 145 were restricted to permitting the complainant to lead evidence on affidavit and do not provide the same dispensation to the accused, Indian Bank Association (supra) did not struck a discordant note. 29. It is true in clause 5 of the directions in paragraph 21 in the case of Indian Bank Association (supra) (extracted above), the Supreme Court observed that the Court has option of accepting affidavits of the witnesses, instead of examining them in Court. However, the said direction cannot be read out of context. It is well recognized that the words in a judgment cannot be read like statute. A decision is an authority for what it actually decides and not what logically flows from the said decision. 30. In the case of Mandvi Cooperative bank (supra), a Bench of co-equal strength of the Supreme Court has elaborately considered the specific question as to whether an accused can be permitted to adduce evidence on oath and ruled against such course of action ascribing reasons. 30. In the case of Mandvi Cooperative bank (supra), a Bench of co-equal strength of the Supreme Court has elaborately considered the specific question as to whether an accused can be permitted to adduce evidence on oath and ruled against such course of action ascribing reasons. It cannot be urged that in the the case of Indian Bank Association (supra), another two Judge Bench of the Supreme Court delved into the correctness of the said view and took a diametrically opposite view. The decision in the case of Mandvi Cooperative bank (supra), in my view, still holds the field. 31. The second aspect of Indian Bank Association (supra), being a decision latter in point of time, commands precedence, may not detain the Court. The legal position is absolutely clear. 32. As noted above, in my humble opinion, there is no conflict between the decisions in the cases of Mandvi Cooperative bank (supra) and Indian Bank Association (supra). Even if one proceeds on the premise that decisions in the cases of Mandvi Cooperative bank (supra) and Indian Bank Association (supra) are irreconcilable, the rule is to apply the earliest view as the succeeding one would fall in the category of per incuriam. It would be suffice to note the statement of law in the case of Sundeep Kumar Bafna v. State of Maharashtra and Anr., AIR 2014 Supreme Court 1745. 19] It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of Courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Co-equal or Larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam. (emphasis supplied) 33. Thus, this Court regrets its inability to agree with the view of the Karnataka High Court in the case of Afzal Pasha (supra) on both the counts namely there being an inconsistency in the decisions in the cases of Mandvi Cooperative bank (supra) and Indian Bank Association (supra) and Indian Bank Association (supra), being a latter decision, deserves to be followed. 34. At this stage, it must be noted that apart from the decisions of learned single Judges of this Court, in the cases of SBI Global Factors Limited (supra) and Nitin Shriram Sabe (supra), there are decisions of the other High Courts which have consistently held that Mandvi Cooperative bank (supra) still holds the field despite the pronouncement of the Supreme Court in the case of Indian Bank Association (supra), to which the attention of the Court was invited by Mr. Karia, namely, (i) Rajni Dhingra v. Sanjeev Chugh, 2019 SCC OnLine P&H 2464; (ii) P.T. Joy v. K.V. Sivasankaran & Another, CDJ 2020 Ker HC 384; (iii) Prabhudas Panjainmal Rice and Dal Mill vs. Avon Trade Link, Shakti Nagar, Katni, 2021(4) M.P.L.J. 516 ; and (iv) Rajeshwar Dayal Pareek vs. M/s. Alankar Marble and Grenite and Ors. , Raj. High Court, Cri.M.P. No.1549/23 Dt. 25/04/23.. 35. The upshot of aforesaid consideration is that, the decisions of this Court in SBI Global Factors Limited (supra) and Nitin Shriram Sabe (supra) have correctly held that the question sought to be raised by the petitioners is no longer res integra and stands concluded against the accused by the judgment of the Supreme Court in the case of Mandvi Cooperative bank (supra). This Court does not find any reason to take a different view of the matter than the one taken by the coordinate Benches in the cases of SBI Global Factors Limited (supra) and Nitin Shriram Sabe (supra). Therefore, I decline the invitation of Mr. This Court does not find any reason to take a different view of the matter than the one taken by the coordinate Benches in the cases of SBI Global Factors Limited (supra) and Nitin Shriram Sabe (supra). Therefore, I decline the invitation of Mr. Patel to take a different view of the matter and refer the question to a larger Bench. 36. Resultantly, the petitions deserve to be dismissed. 37. Since the trial in the complaints has reached an advanced stage and only the evidence for the accused is to be adduced, I deem it appropriate to request the learned Metropolitan Magistrate to conclude the trial as expeditiously as possible. Hence, the following order. ORDER 1] The petitions stand dismissed. 2] Rule discharged. 3] No costs.