Supreme Court revives cheque-bounce revision after finding no prejudice was ever pleaded

The Supreme Court set aside a Kerala High Court order that had remanded a cheque-dishonour trial under Section 138 of the Negotiable Instruments Act, 1881, back to the stage of defence evidence, and restored the accused's criminal revision petition for the High Court to decide afresh on its merits. The accused's trial, in which he was convicted, had already been completed. Before the High Court, he argued that his evidence should have been recorded on affidavit under Section 145(2) of the Act, relying on this Court's decision in Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore.

The Supreme Court explained that Mandvi Cooperative Bank distinguished the complainant's evidence, which Section 145(1) allows to be given on affidavit, from the accused's defence evidence, which need not be documentary and may need to be tested in person; recording it in person is not, by itself, an irregularity. More importantly, the accused had never raised any plea of prejudice before the trial court or the first appellate court, and had not shown how being examined in person, rather than by affidavit, had prejudiced his defence. Since the point was raised for the first time in revision without any plea of prejudice, the Court held the High Court's remand improper, set it aside, and sent the revision petition back for fresh consideration on its own merits.