Karnataka High Court
Manjula M K vs M Bakkeshwaraiah on 21 May, 2013
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF MAY 2013
BEFORE
THE HON'BLE DR.JUSTICE JAWAD RAHIM
CRL.P.NO. 2906/2013
BETWEEN
MANJULA.M.K,
W/O.MALLIKARJUNA KABBOOR MATHA,
AGED ABOUT 38 YEARS,
RESIDING AT SHIVA SHASHI SADANA,
MURUKAL COMPOUND,
VAGISHA NAGARA,
SIDDAVEERAPPA BADAVANE,
HARIHAR - 577 601,
DAVANAGERE DISTRICT. ... PETITIONER
(BY SRI.P.H.VIRUPAKSHAIAH, ADV.)
AND
M.BAKKESHWARAIAH,
S/O.M.VEERABHADRAIAH,
AGED ABOUT 60 YEARS,
RESIDING AT 1ST MAIN, I CROSS,
'A' BLOCK, VIDYANAGARA,
HARIHAR - 577 601,
DAVANAGERE DISTRICT. ... RESPONDENT
(BY SRI.RAJA SUBRAMANYA BHAT, HCGP)
2
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO
ALLOW THE PETITION BY QUASHING THE IMPUGNED ORDER
DT. 08.04.2013 IN C.C.NO.536/2011 ON THE FILE OF THE
PRL.C.J. & JMFC, HARIHAR AND PASS NECESSARY ORDERS
ALLOWING THE APPLICATION U/S. 91 OF THE CR.PC.
DIRECTING THE MANAGER, STATE BANK OF MYSORE,
HARIHAR AND MANAGER, CANARA BANK, HARIHAR TO
PRODUCE ALL PARTICULARS PERTAINING TO PETITIONER'S
ACCOUNT BEARING NO.54039744955 AND 047810104787
RESPECTIVELY.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING: -
ORDER
The petitioner who is arraigned as accused is facing charge for the offence punishable under Section 138 of N.I. Act in C.C.NO.536/2011 on the file of Principal Civil Judge and JMFC, Harihar. He has questioned the order dated 08.04.2013 passed by the learned JMFC rejecting his application under Section 91 of Cr.P.C.
2. By invoking section 482 of Cr.P.C. the petitioner seeks to quash the said order and to issue direction for securing the documents mentioned in his application. 3
3. Learned counsel Sri.P.H.Virupakshaiah could not dispute the fact that the petitioner-accused wants to use such documents in his defence. Therefore, undoubtedly, when the accused wants to use such documents in his evidence, the provision under Section 243 of Cr.P.C. undoubtedly would apply under that provision, once the accused seeks to summon any witness or documents in his defence, the Magistrate is bound under law to issue process and secure the presence of such witness or the documents to enable accused to lead defence. In this view, the petitioner has substantive right to get the documents procured by the Court by issuance of necessary process under Section 243 of Cr.P.C. As accused has not made an application under that provision and resorted to Section 91 of Cr.P.C., the learned Jurisdictional Magistrate has rejected the application.
4. I am satisfied that in the circumstances, to permit the petitioner to move the learned trial Judge with an application under Section 243 of Cr.P.C. to summon the 4 records or the documents which the accused intends to use in his defence either at the stage of cross-examination of PW-1 or after evidence of prosecution is closed. For that purpose, the trial Court shall give an opportunity.
5. There, the action under Section 482 of Cr.P.C. to quash the order passed under Section 91 of Cr.P.C. may not be justified.
6. Consequently the following order is made:
While disposing the petition filed under Section 482 Cr.P.C., the right of the petitioner to apply to the trial court with an application under Section 243 of Cr.P.C. to summon witnesses or the documents is reserved. If the petitioner- accused files such an application, the trial court shall summon and issue process to secure such witness or document and enable the accused to use it either in cross-examination of prosecution or in his defence.5
To enable the accused to do so, he is granted two weeks time. Meanwhile, till such time the proceedings in the trial court shall stand stayed.
Issue operative portion of the order.
Sd/-
JUDGE AP/-st