IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH 2017 BEFORE THE HON’BLE MR.JUSTICE ANAND BYRAREDDY Criminal Petition No. 2054 of 2017 Between:
Sri. Siddachari S/o Siddachari, Aged about 60 years, Residing at No.126, 9th Cross, IV Main, Chamarajpet, Bengaluru-560 018.
(By Shri. Leeladhar H.P., Advocate) And:
Cholamandalam Investment & Finance Co. Ltd., …Petitioner (formerly known as M/s Cholamandalam DBS Finance Ltd.), No.45, 2nd Floor, Prestige Libra, Above passport Office, Lalbagh Road, Bengaluru-560 027.
Represented by T.J. Ravi, Officer and Power of Attorney Holder.
(Notice to respondent dispensed with) ... Respondent This Criminal Petition is filed under Section 482 of Cr.P.C. praying to quash the order dated 1302.2017 passed by the 42nd ACMM, Bengaluru in C.C.No.5169/2016 and allow the application filed by the petitioner under Section 311 of Cr.P.C. under Annexure-A.
This Criminal Petition coming on for Admission this day, the court made the following:
O R D E R Having regard to the circumstances of the case, notice to the respondent is dispensed with.
2. Heard the learned counsel for the petitioner.
3. The petitioner is embroiled in a rather involved case where it transpires that the petitioner had purchased a vehicle which was already hypothecated with the respondent herein and inturn the hypothecation was transferred as against the petitioner and while he was in possession of the vehicle under such hypothecation with the respondent, the Hubli Police are said to have descended on him on the allegation that the vehicle in question was a stolen vehicle and have taken it away. This was informed to the complainant. The complainant primarily sought to encash the cheque which was provided as security and when that was dishonoured, a case under Section 138 of the Negotiable Instruments Act, 1881 has been instituted. In that proceeding, the petitioner is said to have made an application under Section 91 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’, for brevity) and another under Section 311 of Cr.P.C., namely, to summon the hypothecation agreement between the erstwhile owner of the vehicle and the second respondent, as well as the hypothecation agreement between the petitioner and the second respondent and seeking recalling of the witness to confront that witness with the documents, when so produced. The trial Court has taken up the application under Section 311 first, and has rejected it, without taking into account that it was a consequential application which would have warranted consideration if the application under Section 91 was considered and since that application was pending, the very purpose of summoning the documents and marking the same through witness has been taken away and therefore the petitioner is before this Court.
4. There is substance in the contention of the petitioner, provided the trial Court accepts the application under Section 91 of Cr.P.C. and permits to summon the documents. If those documents are summoned, it would be necessary for the petitioner to recall the witness, examine the witness, mark the documents and confront the documents to the said witness. Therefore, the court below shall consider the application filed under Section 91 of Cr.P.C., which is said to be pending, and if the Court is inclined to allow the application and it may then also consider another application that may be filed by the petitioner seeking recall of the witness to mark the documents before the Court, if so produced, for otherwise, no purpose would be served by summoning the documents.
With that observation, the petition stands disposed of.
Sd/- JUDGE Rd/-