M/S H. Parson Private Limited v. The State Of Maharashtra And ANR.

ssm 1 wp2802.18.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2802 OF 2018 M/s. H. Parson Private Limited ....Petitioner.

Vs.

The State Of Maharashtra & Anr.

....Respondents.

Mr. Yashpal Thakur for the Petitioner.

Mr. A.R. Patil, APP for the Respondent No.1-State. None for the Respondent No.2.

CORAM : A. S. GADKARI, J.

DATE : 17th MARCH, 2021.

P.C.:- Petitioner, Original-Complainant has impugned Order dated 19th June, 2018 passed by the learned Additional Metropolitan Magistrate, 33rd Court, Ballard Estate, Mumbai below Exh-24 in CC No.4674/SS/2015, thereby rejecting its Application for discarding the evidence of accused given on Affidavit and for directions to the accused to lead oral evidence, has been rejected.

The record indicates that, the notice issued to the Respondent No.2 has been duly served upon him however, none appears for the Respondent No.2.

Mr. Thakur, learned counsel for the Petitioner submitted that, the issue involved in the present Petition is fully covered by the decision of this Court in Criminal Writ Petition No.1916 of 2019, dated 3rd March, 2021 1/2

ssm 2 wp2802.18.doc (SBI Global Factors Limited Vs. The State of Maharashtra & Ors.,). He submitted that, by the impugned Order dated 19th June, 2018, the Trial Court has rejected his Application to discard the Affidavit of Evidence in lieu of Examination-in-Chief of accused and for direction to him to lead oral evidence.

This Court in SBI Global Factors Limited (supra) has held that, an accused in a proceeding under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the NI Act") cannot be permitted to file an Affidavit of Evidence in lieu of Examination-in-Chief. In view thereof, the impugned Order dated 19th June, 2018 passed below Exh-24 is quashed and set aside. The evidence of Respondent No.2-accused filed by way of '

Affidavit of Evidence of Accused' dated 4th May, 2018, is discarded from record of CC No.4674/SS/2015, by allowing the Application of Petitioner filed below Exh-24, dated 19th June, 2018. Learned Additional Metropolitan Magistrate, 33rd Court, Ballard Estate, Mumbai is directed to record oral evidence of Respondent No.2-original accused namely Mr. Louis Mascarenhas by following necessary procedure prescribed by law, in that behalf. Petition is accordingly allowed in terms of prayer clause (b). (A.S. GADKARI, J.) 2/2