Bangalore District Court
Has Elaborately Lead His Evidence And ... vs But In The Name Of Sister'S Son Of The ... on 22 March, 2016
C.C.NO.20844/2014
Dt:22.03.2016
ORDERS ON APPLICATION FILED U/s. 311 of
Cr.P.C
This application is filed by the complainant
U/s.311 of Cr.P.C. along with list of witness with prayer
to permit him to lead further evidence, in the interest of
justice stating that, the accused has denied some
signatures in the agreement. At the time of agreement
one Andarao & Raju were present. Hence, these
witnesses are very much important to establish his case.
Hence, he prays to allow the application by permitting
him to examined those persons before this court.
2. The accused has filed objections stating that,
the application is not maintainable either in law or on
facts, the case is posted for arguments on merits and
complainant has elaborately lead his evidence and cross-
examined the accused. Now he has come up with this
application to recall the orders and permit him to lead
further evidence at this belated stage. The complainant
is already examined by producing documents like Bank
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statement, RTO documents and also witnesses like PW1
to PW3. Now he has come up with this application again,
to examine some more witness without furnishing of
witness on earlier occasion though it is mandatory.
3. Further, contended that, the accused has
denied presence of the witnesses stating that they not
signed before him. and there is no proper identification of
the witness found. Hence, contended that, Ex.P.6 is not a
genuine document & it is concocted documents. Hence,
with all other contentions he prays for dismissal of the
application.
Heard.
4. On perusal of the entire materials on record,
it shows that, complainant has maintained this
complaint on the allegations of commission of offence
punishable U/s.138 of N.I Act, stating that the accused
being the owner of the HMV Crane Vehicle bg.No.KA-01-
MC-640 had sold the same infavour of the complainant.
But after some time, as there was loss in business, the
complainant had sold the said vehicle in favour of the
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accused, but in the name of Sister's son of the accused
Loganathan @ Lokesh for sale consideration of
Rs.25,00,000/- on the instructions of the accused & the
said Loganathan had paid a sum of Rs.7,00,000/-
through cheque and paid Rs.3,00,000/- by way of cash
and the accused had issued post dated cheque for
remaining amount of Rs.15,00,000/- and those cehques
on their presentation for encashment bounced back
unpaid for the reason "funds insufficient" despite of
service of demand notice against the accused, as he has
not complied with the demands of notice, he has
approached this court along with complaint.
5. But the accused though not disputed about
selling of the Crane vehicle infavour of the complainant
and about the sale transaction allegedly taken place
between the complainant and the accused with regard to
the selling back of Crane vehicle infavour of the accused,
but it is the contention of the accused that, the
complainant has not given the possession of the said
vehicle and hence, the cheques allegedly given by him
infavour of the complainant were not honoured. The
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complainant to substantiate the fact of selling away of
crane vehicle infavour of the one Loganathan @ Lokesh.
Sister's son of the accused. on instructions of the
accused, he has marked documents like Sale agreement
which is marked as Ex.P.6. Though the accused not
denied about the execution of the said agreement i.,e
Ex.P.6 agreement but not admitted fully. On the other
hand, he has partially admitted the said documents by
stating that, the signature and LTM found on 1st page
and last page are belongs to him but he has not signed
page No.2.
6. Hence, it is the contention of the accsued
that, the said Ex.P.6 documents is concocted and created
one. Since the accused neither admitted about execution
of the said Ex.P.6 documents nor denied in entirety, the
complainant intends to examine the witness who were
allegedly present at the time of execution of Ex.P.6
document to prove the fact that Ex.P.6 was executed by
the accused in favour of the complainant.
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7. Though accused has resisted this application
stating that, the said documents is concocted one and
the witness to whom the complainant intends to
examine, were not present at the time of alleged
execution of the agreement etc., but whether Ex.P.6
documents is concocted or not whether the said
documents came into existence in the presence of alleged
witness or not are all to be elicited only during the cross-
examination. Since the accused neither admitted Ex.P.6
nor denied in entirety and the said document i.e., Ex.P.6
document is vital document, upon which it is alleged by
the complainant that accused had issued disputed
cheque. Hence, it is just and necessary to prove the said
document by examining the necessary witness before this
court. Hence, this court is of the opinion that, there is
sufficient grounds to consider the prayer of the
complainant. Hence, I am of the opinion that an
opportunity should be given to the complainant to prove
his case with material evidence. However, the delay
caused by the complainant in maintaining this
application belatedly could be compensated by imposing
some cost. Hence, I proceed to pass the following....,
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ORDER
The application filed u/s. 311 of Cr.P.C. on behalf of the complainant is hereby allowed on cost of Rs.500/-
(C.G.Vishalakshi) XIII A.C.M.M., Bangalore. 7 (Order typed vide separate Sheet) ORDER The application filed u/s. 311 of Cr.P.C. on behalf of the accused is hereby rejected on cost of Rs.700/-
(C.G.Vishalakshi) XIII A.C.M.M., Bangalore.