DATED 27.03.2019

PASSED

BY

THE 1^ST

MANJANNA

E

Digitally

signed by

MANJANNA E

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ADDITIONAL CIVIL JUDGE AND J.M.F.C. I COURT, GADAG ON

REJECTING THE APPLICATION FILED BY THE PETITIONER / ACCUSED

UNDER SECTION 145(2), IN CRIMINAL CASE NO.1448/2016, ON THE

BASIS OF THE PRIVATE COMPLAINT FILED BY THE RESPONDENT IN

P.C. NO.313/2016 OF THE OFFENCE PUNISHABLE UNDER SECTION

138 OF N.I. ACT AND ALLOW THE APPLICATION.

THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE

COURT MADE THE FOLLOWING:

ORDER

Though this petition is listed for admission, with the

consent of the parties, it is taken up for final

disposal.

2.

The present petition is filed under Section 482 of

Cr.P.C. with the following prayer:

“To allow the criminal petition and quash the impugned

order dated 27.03.2019 passed by the 1^st Additional Civil

Judge and J.M.F.C. I Court, Gadag on rejecting the application

filed by the petitioner / accused under Section 145(2), in

Criminal Case No.1448/2016, on the basis of the private

complaint filed by the respondent in P.C. NO.313/2016 of the

offence punishable under Section 138 of N.I. Act and allow the

application.”

3.

Brief facts of the case are as under:

3.1

The petitioner is the accused in C.C.No.1448/2016.

In order to put forth his defence, petitioner herein

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filed an affidavit as defence evidence under Section

145(2) of Cr.P.C. The same came to be rejected by

the learned trial Magistrate on the ground that

recording of evidence of the accused by way of

affidavit is impermissible by following the prevailing

case law as on the date of passing the impugned

order on 27.03.2019. The same is under challenge.

4.

The law as on today is well settled that parties to the

criminal proceedings filed under Section 138 of

Negotiable Instruments Act can lead their respective

evidence in the form of examination-in-chief by filing

an affidavit. Therefore, the impugned order needs to

be set aside and affidavit filed by the petitioner is to

be considered as examination-in-chief. Hence, the

following:

ORDER

The petition is allowed. Order dated 27.03.2019

is hereby set aside.

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The trial Court is directed to treat the affidavit

filed by the petitioner in lieu of his examination-in-

chief and the respondent is at liberty to cross-

examine the petitioner.

Having regard to the age of the petition, the

trial Court is directed to dispose of the main matter

on or before 30.09.2022.

Needless to emphasise that the parties shall co-

operate for the same.

Sd/-

JUDGE

SH