1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29 TH DAY OF FEBRUARY 2016 BEFORE HON BLE MR. JUSTICE PRADEEP D. WAINGANKAR CRIMINAL PETITION NO.2705 OF 2015 BETWEEN:- G.V. SHANTHARAJ, S/O SRI. VENKATASWAMY REDDY R/AT. NO.724, 6 TH MAIN, 5 TH BLOCK VIDYARANYAPURA BANGALORE 560 098.... PETITIONER (BY SRI: PRADEEP S. SAWKAR, ADV.,) AND:- 1. M/S. RELIAABLE LAKESHORE (RELIAABLE AVIA) A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO.16 & 16/1, MUSEUM ROAD 2. H.P. RAMA REDDY S/O CHIKKAPPAIAH R/AT. NO.255, 36 TH CROSS 5 TH MAIN, 4 TH BLOCK JAYANAGAR BANGALORE 560 011.
2 3. A. RAMA REDDY, S/O LATE ASWATHANARAYANA REDDY R/AT. NO.479, 13 TH MAIN 3 RD BLOCK, KORAMANGALA BANGALORE 560 034. 4. KIRAN V, C/O. RELIAABLE LAKESHORE ADDRESS AT NO.16 & 16/1 MUSEUM ROAD 5. PRANEETH P, C/O. RELIAABLE LAKESHORE ADDRESS AT NO.16 & 16/1 MUSEUM ROAD... RESPONDENTS (BY SRI: K.S. VENKATARAMANA, ADV., FOR R1-R5) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE ORDER DATED 18.03.2015 PASSED BY THE XIII-ACMM COURT, BENGALURU IN C.C.NO.172/2009 DISMISSING THE APPLICATION FILED U/S 65 OF INDIAN EVIDENCE ACT, 1872 AND CONSEQUENTLY ALLOW THE SAID APPLICATION FILED BY THE PETITIONER. THIS CRL.P HAVING BEEN HEARD AND RESERVED FOR PRONOUNCEMENT OF ORDERS, THIS DAY, PRADEEP D. WAINGANKAR J., PRONOUNCED THE FOLLOWING: O R D E R This petition is one under Section 482 Cr.P.C. to quash the order dated 18.3.2015 passed by XIII Addl. CMM,
3 Bangalore in C.C.No.172/2009 dismissing the application filed by the petitioner-complainant under Section 65 of the Indian Evidence Act. 2. The petitioner is the complainant before the Magistrate in C.C.No.172/2009 and the respondents are the accused. Petitioner filed complaint against the respondentsaccused for the offence punishable under section 138 of N.I. Act. The learned Magistrate took cognizance of the offence under Section 138 against all the respondents-accused. The petitioner led his evidence and closed his side. Thereafter, the respondent led defence evidence. The complainant filed an application under Section 91 of Cr.P.C. to issue direction to Joint Commissioner of Income Taxes, Central Range-I, Bangalore to produce certified copy of the Memorandum of Understanding dated 18.4.2008 entered between the complainant with the accused. The application was allowed. The income-tax authorities were directed to produce documents as sought for by the complainant. However, the Income-tax authorities have issued an endorsement stating
4 that the documents sought to be produced could not be traced. As such, the petitioner-complainant filed an application under Section 65 of the Indian Evidence Act seeking permission to lead secondary evidence. It was opposed by the respondents-accused. Both the parties were heard on the application and by the impugned order dated 18.3.2015, the application came to be rejected by considered order. To quash the said order, this petition is filed by the petitioner-complainant. It is borne out from the records that the issuance of cheque in favour of the petitioner-complainant by the respondents- accused for Rs.89,00,000/- is admitted by the respondents-accused. They have made it clear that even now they are ready to pay the cheque amount. But the sisters of the petitioner are demanding more money contrary to the settlement arrived at between the parties in O.S.No.5653/1998, which made the accused to direct their banker to stop the payment. Thus from the records, it is very much clear that the issuance of cheque by the respondentsaccused is not in dispute. Under such circumstances, permitting the petitioner-complainant to lead secondary
5 evidence, that too, when not only the complainant led his evidence but also the accused, does not arise. Taking note of these facts and circumstances of the case, the court below has rightly rejected the application. If the accused were parties to memorandum of understanding dated 18.4.2008, the petitioner-complainant ought to have marked the copy as the accused are not denying the Memorandum of understanding dated 18.4.2008. I do not find any illegality in dismissing the application under Section 65 of the Evidence Act. When there is no illegality committed by the learned Magistrate, quashing the impugned order by exercising power under Section 482 of Cr.P.C is uncalled for. Hence, criminal petition is dismissed. In view of disposal of the main matter, I.A.1/15 for stay does not survive for consideration. Accordingly, it is disposed of. Sd/- JUDGE *mn/-