Karnataka High Court
Vittal Sambrekar vs Manjunath on 2 July, 2019
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2nd DAY OF JULY 2019
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.9331 OF 2017
C/W
CRIMINAL PETITION NO.9332 OF 2017
IN CRIMINAL PETITION NO.9331 OF 2017
BETWEEN:
VITTAL SAMBREKAR
S/O VISHNU SAMBREKAR,
AGED ABOUT 48 YEARS
RESIDING AT NO.6,
2ND MAIN, MALLESHPALYA,
NEW THIPPASANDRA,
BANGALORE NORTH
BANGALORE-75 ... PETITIONER
(BY SRI: SAMARTH PRAKASH, ADVOCATE)
AND
MANJUNATH
S/O VEERAPPA,
AGED ABOUT 49 YEARS
RESIDING AT NO.39/1, 4TH I CROSS,
VRUSHABHAVATHI NAGAR,
KAMAKSHIPALYA,
BANGALORE-79
... RESPONDENT
(BY SRI: J M UMESHMURTHY, ADVOCATE)
2
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
PRAYING TO 1) SET ASIDE THE ORDER DATED 04.11.2017
PASSED IN C.C.NO.50980/2017 BY THE LEARNED LVII
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT
BANGALORE (MAYO HALL) (ANNEXURE A) WHEREIN THE
APPLICATION UNDER SECTION 145(2) SEEKING THAT THE
PETITIONER BE PERMITTED TO LEAD EVIDENCE BY WAY OF
AFFIDAVIT, FILED BY THE PETITIONER WAS DISMISSED. 2)
PASS AN ORDER DIRECTING THE LEARNED LVII ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE AT BANGALORE (MAYO
HALL) TO ACCEPT EVIDENCE OF THE ACCUSED BY WAY OF
AFFIDAVIT IN LIEU OF ORAL EVIDENCE IN THE FORM OF
EXAMINATION IN CHIEF AND PROCEED IN C.C.NO.50980/2017,
PENDING ON THE FILE OF THE SAID COURT IN ACCORDANCE
WITH LAW.
IN CRIMINAL PETITION NO.9332 OF 2017
BETWEEN:
VITTAL SAMBREKAR
S/O VISHNU SAMBREKAR,
AGED ABOUT 48 YEARS
RESIDING AT NO.6,
2ND MAIN, MALLESHPALYA,
NEW THIPPASANDRA,
BANGALORE NORTH
BANGALORE-75
... PETITIONER
(BY SRI: SAMARTH PRAKASH, ADVOCATE)
AND
VENUGOPALAN NAIR
S/O KUNHIKANNAN NAIR
3
AGED ABOUT 58 YEARS
R/AT NO.167, 1ST MAIN,
4TH STAGE, BEML LAYOUT,
RAJARAJESHWARINAGAR,
BANGALORE 560098.
... RESPONDENT
(BY SRI: J M UMESHMURTHY,ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
PRAYING TO 1) SET ASIDE THE ORDER DATED 04.11.2017
PASSED IN C.C.NO.50979/2017 BY THE LEARNED LVII
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT
BANGALORE (MAYO HALL) (ANNEXURE A) WHEREIN THE
APPLICATION UNDER SECTION 145(2) SEEKING THAT THE
PETITIONER BE PERMITTED TO LEAD EVIDENCE BY WAY OF
AFFIDAVIT, FILED BY THE PETITIONER WAS DISMISSED. 2)
PASS AN ORDER DIRECTING THE LEARNED LVII ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE AT BANGALORE (MAYO
HALL) TO ACCEPT EVIDENCE OF THE ACCUSED BY WAY OF
AFFIDAVIT IN LIEU OF ORAL EVIDENCE IN THE FORM OF
EXAMINATION IN CHIEF AND PROCEED IN C.C.NO.50979/2017,
PENDING ON THE FILE OF THE SAID COURT IN ACCORDANCE
WITH LAW.
THESE CRIMINAL PETITIONS ARE COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Petitioner is aggrieved by the order dated 04.11.2017 passed by learned LVII Addl. CMM, Bengaluru in C.C.No.50979/2017 and C.C.No.50980/2017 whereby the applications filed by the petitioner (hereinafter referred as 4 'accused') under section 145(2) of N.I. Act to lead evidence by way of affidavit have been dismissed.
Heard learned counsel for petitioner and learned counsel appearing for respondent.
2. The contention raised by the petitioner is already answered by this Court in the case of AFZUL PASHA vs. MOHAMED AMEERJAN, reported in 2017(3) KCCR 1862, wherein this Court considering Section 145 of N.I. Act and the provisions of section 315 of Cr.P.C. has held that having regard to the tenor of section 145 of N.I. Act, it is permissible for the accused to lead defence evidence by way of affidavit. Learned counsel has also placed reliance on decisions of various other High Courts namely:-
1. INDO INTERNATIONAL LTD., AND ANOTHER vs. STATE OF MAHARASHTRA AND ANOTHER, 2005 Crl.L.J. 208.
2. MAGMA LEASING LTC., vs. STATE OF VEST BENGAL AND ORS., 2007 (3) CHN 574.
3. INDRAPRASTHA HOLDINGS LTD., vs. VIJAY J.
SHAH, 2005 ALL MR (Cri) 3007.
5
4. RAJESH AGARWAL vs. STATE & ANOTHER, Crl.M.C.No.1996/2010 before the High Court of Delhi.
5. PEACOCK INDUSTRIES LTD., MR. DAUD vs. BUDHRANI FINANCE LTD., AND STATE , 2006 (5)MH L J 162.
6. JAYWANT SUKHADEO GADEKAR vs. PRAKASH PANJABRAO RAUT AND ANOTHER, 2008 (5) Mh LJ 179.
7. KSL AND INDUSTRIES LTD., vs. MANNALAL KHANDELWAL AND THE STATE, 2005 Crl.L.J. 1201.
8. RAKESHBHAI MANGANBHAI BAROT vs. STATE OF GUJARAT,
9. SHREENATH AND ANOTHER vs. RAJESH AND OTHERS, 1998 AIR SC 1827.
10. INDIAN BANK ASSOCIATION AND OTHERS vs. UNION OF INDIA AND OTHERS, , 2014 AIR SC 2528.
Following the proposition of law enunciated in the above decisions especially the law laid down in Indo International Ltd., vs. State of Maharashtra and Another that "The court dealing with a complaint under Section 138 of the said Act of 1881 has an option to take evidence of the witnesses on the side of the prosecution as well as evidence of the accused and the defence 6 witnesses, if any, on affidavit", petitions are allowed. The order dated 04.11.2017 passed in C.C.No.50979/2017 and C.C.No.50980/2017 on the file of learned LVII Addl. CMM, Bengaluru is set-aside. The application filed by the petitioner/accused under section 145 Cr.P.C. stands allowed. The trial court shall receive the evidence of the petitioner/accused by way of affidavit and proceed in accordance with law.
Sd/-
JUDGE *mn/-