Bombay High Court
Mohd. Amin Ahmed Surya vs M/S Jalaram Jyot Agencies And Anr on 11 October, 2019
Bench: A.M. Badar
(910)WPNo.51952019(J).odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.5195 OF 2019Shri.Mohd. Amin Ahmed Surya … Petitioner VersusM/s.Jalaram Jyot Agencies & Anr. … Respondents …..Mr.H. S. Thakkar, Advocate for the Petitioner.Smt.Sheetal D. Mishra, Advocate for the Respondent No.1.Mr.A.R.Kapadnis, APP for the Respondent No.2/State. …. CORAM : A.M.BADAR J. DATED : 11th OCTOBER 2019.ORAL JUDGMENT :1 Heard.2 Rule. Rule is made returnable forthwith. Heard finallyby consent of parties.3 The petitioner/accused is challenging the Order dated19/07/2019 passed on his application for permitting him to fileevidence on affidavit. The said application came to be rejectedwithout giving any reason, but by observing that in view of thedirections given in M/s.Mandvi Co-operative Bank Ltd. v. NimeshGaikwad RD 1/3 ::: Uploaded on – 11/10/2019 ::: Downloaded on – 12/10/2019 02:49:04 ::: (910)WPNo.51952019(J).odtB Thakore and the law laid down in the said decision at paragraph36, the application deserves to be rejected.4 The approach of the learned trial Court in rejecting theapplication moved by the applicant for permitting him to file hisevidence on affidavit is totally illegal. In Criminal Appeal arisingout of SLP Nos 4760/2006, 5689/2006, 1106/2007, 6442/2007,6443/2007 and 6703/2007 (M/s.Mandvi Co-operative Bank v.Nimesh B.Thakore), the Honourable Apex Court has held thateven though the legislature in their wisdom did not deem it properto incorporate the work ‘accused’ with the word ‘complainant’ inSection 145(1), it did not mean that the Magistrate could notallow the accused to give his evidence on affidavit by applying thesame analogy unless there was a just and reasonable ground torefuse such permission. In the case in hand, no such just orreasonable ground for refusing permission to the accused toadduce evidence on affidavit is seen. Therefore, the impugnedOrder cannot be sustained. In the result, the following Order : ORDER
(i) The impugned Order dated 19/07/2019 rejecting the application for permitting the accused to file evidence on affidavit is quashed and set aside.
(ii) The petitioner/accused is permitted to file evidence on affidavit and if such evidence affidavit is filed, thenGaikwad RD 2/3 ::: Uploaded on – 11/10/2019 ::: Downloaded on – 12/10/2019 02:49:04 ::: (910)WPNo.51952019(J).odt subject to all just exceptions, it be read in evidence in the trial.
(iii) The Writ Petition is disposed of accordingly.
(A.M.BADAR, J.)Gaikwad RD 3/3 ::: Uploaded on – 11/10/2019 ::: Downloaded on – 12/10/2019 02:49:04 :::

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