IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28th DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE Mr. JUSTICE G.NARENDAR CRIMINAL PETITION NO.8168 OF 2019 BETWEEN:
VASU E N, S/O E NAGARAJA, AGED ABOUT 32 YEARS, RESIDING AT NO.1388, 1ST FLOOR, 1ST MAIN ROAD, GANDHI NAGAR YELAHANKA, BANGALORE - 560 064. ...PETITIONER (BY SRI S N ASWATHANARAYAN, ADVOCATE) AND:
SRI A P KRISHNA KUMAR, S/O A R PARAMESHWARAN, AGED ABOUT 56 YEARS, RESIDING AT NO.20, SKANDA, 1ST MAIN ROAD, BALAJI LAYOUT, VIDYARANYAPURA, BANGALORE - 560 097. …RESPONDENT **** THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.PC PRAYING TO SET ASIDE THE ORDER DATED 23.10.2019 REJECTING THE INTERLOCUTORY APPLICATION FILED BY THE PETITIONER UNDER SECTION 311 CR.PC SEEKING RECALL THE ORDER DATED 18.10.2019 AND PERMIT THE PETITIONER TO LEAD DEFENSE EVIDENCE ON THE FILE OF THE LEARNED XVIII A.C.M.M., BENGALURU IN C.C.NO.26708/2016 AND ALLOW THE SAID APPLICATION.
THIS PETITION COMING ON FOR ADMISSION THIS DAY THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioner.
2. It is submitted that the trial Court by order dated 18.10.2019 was pleased to take defence evidence as ‘nil’ and that the petitioner made an application under Section 311 praying to recall the order and permit the petitioner to tender his defence and the trial Court by order dated 23.10.2019 was pleased to reject the same on the ground that the complaint is of the year 2016 and is one of the oldest case on the board.
3. It is seen that the petitioner has not been negligent and in fact he was present and subsequently requested that an opportunity be given to him to tender evidence and in fact he has also moved an application on the very next date. The presence of the accused and his counsel is noted. That being the case, the trial Court could have directed the petitioner/accused to complete his evidence on the same day itself. The onus of rebuttal of the presumption that may be drawn in favour of the complainant, is squarely on the shoulders of the accused which the trial Court ought to have borne in mind that any order is adverse to the petitioner could have resulted in deprivation of his liberty also.
4. In the opinion of this Court the reasons assigned by the trial Court for rejecting the application do not advance the cause of justice. Hence this Court is of the considered view that ends of justice would be served if the order dated 24.10.2019 and the order dated 18.10.2019 and 22.10.2019 are set aside and the petitioner is permitted to tender his evidence in a time bound manner. The petitioner shall tender his evidence on the next date of hearing i.e., on 03.12.2019. In the event the petitioner fails to tender evidence on 03.12.2019, the orders impugned shall stand revived.
Accordingly, the petition is allowed.
Sd/- JUDGE ykl