Single judge disposed of a writ petition challenging a Magistrate order permitting accused to lead oral evidence after objection to affidavit under section 145 of NI Act, allowing oral evidence dehors affidavit.
Writ petition disposed off. Non-bailable warrant in C.C. No.4158/SS/2005 stayed till 29th July 2013.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.743 OF 2013
M/s Paranjpe Construction Co.
and anr.
...Petitioners
v/s
State of Maharashtra and anr.
...Respondents
Mr S.V. Marwadi i/b Mr Sushant Narkar for
Petitioners.
Mr S.S. Pednekar, APP for Respondent No.1.
CORAM : K.U. CHANDIWAL J.
DATED : 12TH JULY 2013.
P.C.:-
1.Heard. While trying proceedings under
section 138 of Negotiable Instruments Act,
representative of complainant tendered affidavit in
lieu of examination-in-chief in terms of section
145 of Negotiable Instruments Act. The complainant
/ applicant failed to lead oral evidence even if
the affidavit was filed. This was precisely owing
to an objection raised by the accused about
exhibiting few of the documents, on the ground of
no positive reference about proof of these
vrd 2 WP743/13
documents in such affidavit.
th
2.The learned Magistrate, by order dated 28
June 2012 allowed the said application by observing
thus :-
“In view of objections raised by the
accused persons vide Exh.5, Application
Exh.6 is allowed and complainant is
permitted to lead further oral evidence for
proving the documents.”
The same was questioned by the accused
applicant in revision application No.724 of 2012
and the learned Additional Sessions Judge, Mumbai
confirmed the order.
3.The learned Additional Sessions Judge
rightly gave reference to the judgment in the
matter of Mandvi Co-operative Bank Ltd. v/s Nimesh
B. Thakore, reported in 2010(4) Mh.L.J. 220, I do
not see any illegality in exercise of discretion by
the learned Magistrate in terms of section 145(1)
or 145(2) of the Negotiable Instruments Act 1988.
Only precaution expected is, complainant would have
option either to bank upon solely on the affidavit
vrd 3 WP743/13
or to lead oral evidence dehors affidavit. As
affidavit is subject to all just exceptions. With
above clarification, writ petition is disposed off.
4.MrMarwadi,learnedcounselfor
petitioners, during the course of submissions
informed, recently owing to absence of the
petitioners before the learned Magistrate, a non-
bailable warrant is issued. He undertakes to make
appropriate application before the said Court for
its termination. Accepting the statement, non-
bailable warrant if any issued in C.C.
No.4158/SS/2005 on the file of the learned
Magistrate, 14th Court, Girgaum, Mumbai is stayed
till 29th July 2013.
( K.U. CHANDIWAL J.)
3 issues framed by the court
Whether an objection to exhibiting documents in an affidavit under section 145 bars the accused from leading oral evidence to prove them.
Whether discretion exercised by the Magistrate allowing complainant to lead oral evidence after objection under section 145 is sustainable.
Whether answer of no to court should extract here
Colour shows how this judgement treated each authority
Mandvi Co-operative Bank Ltd. v/s Nimesh B. ThakoreReferred¶3
Mandvi Co-operative Bank Ltd. v/s Nimesh B. Thakore, 2010(4) Mh.L.J. 220 · Who else cites this
2 provisions across 1 enactments
M/s Paranjpe Construction Co. and anr.
State of Maharashtra and anr.
K.U. Chandiwali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court