IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR. JUSTICE G.NARENDAR CRIMINAL PETITION NO.6079 OF 2019 BETWEEN:
SRI SHIVARAM SHETTY S/O LATE GANAPA SHETTY AGED ABOUT 49 YEARS THOTADA MANE VAKWADY POST KUNDAPURA TALUK UDUPI DISTRICT-576 227 (BY SRI JEEVAN K., ADVOCATE) AND:
SRI BALINDRA SON OF GANAPA POOJARI AGED ABOUT 33 YEARS RESIDING AT No.299 SHANTHI NIVASA 7TH ‘B’ CROSS VENKATA REDDY NAGARA SIDDAPURA, JAYA NAGARA 1ST BLOCK BENGALURU-560 011 ... PETITIONER …RESPONDENT (BY SRI BALINDRA -RESPONDENT SERVED AND UN- REPRESENTED) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ORDER DATED 24.07.2019 PASSED BY THE XX ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU IN C.C.No.24106/2017 ON THE APPLICATION FILED UNDER SECTION 91 OF CR.P.C. PRODUCED AT ANNEXURE-‘A’ AND ALLOW THE SAME.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT PASSED THE FOLLOWING:-
ORDER Heard learned counsel for the petitioner. The Respondent though served remains un-represented.
2. The petitioner is before this Court being aggrieved by order dated 24.07.2019 passed by the trial court on the application preferred by the accused-petitioner praying to bring on record the documents as per list enclosed along with the application filed under Section 91 of Cr.P.C.
3. The trial Court after hearing the parties and adverting to the objections filed before the Court, observed that the application is silent regarding relevancy of those documents, except the documents 1 to 3. That it is not explained as to why and how the documents are relevant and hence filing the application lacks bonafide and is meant to drag the proceeding and to delay the inevitable. Accordingly, has been pleased to reject the application.
4. Admittedly the present stage of proceedings is for further chief-examination of the accused. The proceedings being under Section 138 of N.I. Act, onus and burden lies on the accused to rebutt the evidence placed against him and the presumption enabled by such material. Be that as it may, the petitioner being the accused and in the event of conviction, the petitioner would be seriously prejudiced by deprivation of personal liberty also. The Court ought to have appreciated the said aspect of the matter and also ought to have kept in mind the onus that is cast on the accused in the proceedings under Section 138 of N. I. Act and the right of rebuttal evidence. The Court has not adverted to any of these aspects, it has rejected the application on the premise of dilatory tactics. It is improbable as to how the trial Court could have arrived at conclusion that there is a delay in filing the documents, when it is at the stage for further chief examination of the accused.
5. Hence for the above reasons, application is allowed. Order dated 24.07.2019 passed by the Trial court is quashed. It is made clear that the trial court shall afford an opportunity to the accused to place on record the said material as he desires and the relevance of the documents shall be looked into at the time of appreciation of evidence. As a matter of fact, at the time of appreciation of evidence, it is for the court to appreciate in a manner known to law to either consider the same or to reject irrelevant documents.
6. In the considered opinion of this Court, it is impermissible to call upon the accused to explain the relevancy of the documents that he desires to let in, in his defence to rebut the presumption under the provisions of the N.I. Act.
Hence, Criminal petition is allowed. Impugned order is quashed. Liberty is reserved to the petitioner- accused to place all the materials as he deems fit necessary to demonstrate his defense and to rebut the presumption.
Sd/- JUDGE HR