IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5109 OF 2013 BETWEEN:
BASAVARAJAPPA D.H. S/O.B.D.HOTTAPPA AGED ABOUT 51 YEARS RESIDING AT PADPU HOUSE SANGABETTU POST & VILLAGE BANTWAL TALUK - 574219 …PETITIONER (BY SRI V.G.BHANUPRAKASH, ADV. (ABSENT)) AND:
SURESH K S/O. KUNHANNA GOWDA AGED ABOUT 36 YEARS R/A NERIGURI HOUSE NARIMOGRU VILLAGE AND POST PUTTUR TALUK – 574 201 DAKSHINA KANNADA ... RESPONDENT (BY SRI G.RAVISHANKAR SHASTRY, ADV.,) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 25.05.2013 PASSED BY THE JMFC, SULLIA IN C.C.NO.1018/2011 WHEREIN THE TRIAL COURT HAS REJECTED THE PETITIONER’S PRAYER FOR MARKING OF THE PHOTOCOPY OF THE AGREEMENT DATED 14.12.2010 AND CONSEQUENTLY PERMIT MARKING OF THE PHOTOCOPY OF THE AGREEMENT DATED 14.12.2010.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Learned counsel for the petitioner is absent.
2. Heard learned counsel for the respondent and perused the records.
3. Petitioner is aggrieved by the order dated 25.05.2013 passed by the JMFC, Sullia in C.C.No.1018/2011 whereby, the prayer made by the petitioner/accused for marking the photocopy of the agreement dated 14.12.2010 has been rejected in a proceedings arising out of Section 138 of Negotiable Instruments Act.
4. During the course of cross-examination of PW.1/complainant, petitioner herein (accused) confronted a Xerox copy of the agreement of sale entered into between him and the complainant. The complainant admitted the execution of said agreement and also admitted the fact that he is not in possession of the original agreement since it was cancelled within one week from its execution.
5. Since the execution of the agreement was admitted by the respondent and that he has taken up a plea that the said agreement was later cancelled, for the limited purpose of identification of this document, the same ought to have been permitted to be produced in evidence and marked as exhibit subject to its proof and admissibility. That having not been done, rejection of the said evidence would undoubtedly cause prejudice to the petitioner/accused in the defence set up by him.
6. As a result, impugned order refusing to receive the Xerox copy confronted to complainant/PW.1 is set aside and the document confronted to the witness is permitted to be marked as exhibit subject to its proof and admissibility.
7. Accordingly, petition is allowed, the impugned order dated 25.05.2013 passed by the JMFC, Sullia in C.C.No.1018/2011 is set aside. As C.C.No.1018/2011 is pending since 2011, the trial court is directed to expedite the proceedings.
Sd/- JUDGE HJ