9911796707
TMI Blog2022 (6) TMI 1482X X X X Extracts X X X X X X X X Extracts X X X X ..... he concerned Court. It appears that the petitioner by relying upon the judgment in the case of Rakeshbhai Maganbhai Barot [ 2019 (1) TMI 2047 - GUJARAT HIGH COURT] , straightaway, sought to submit his examination-in-chief. Admittedly, no written request made to the concerned court as envisaged in Section 315 of the Cr.P.C. Keeping in mind this peculiar and distinguishing fact and the mandate of Section 315 of the Cr.P.C., in my considered opinion, both the courts below have committed no mistake in not accepting the examination-in-chief of the present petitioner. The accused preferred an application at Exh. 128 and wherein, written request appears to have been made for submitting evidence on affidavit by way of examination-in-chief. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pass such other order as may be deemed just and proper in the circumstances of the case. 2. Short facts as can be gathered from the memo of petition, stated as under : 2.1 That one criminal complaint being Criminal Case No. 334 of 2017 filed before the learned Principal Civil Judge and Judicial Magistrate First Class at Harij under the provision of Section 138 of the Negotiable Instruments Act against the present petitioner. 2.2 After completion of recording of further statement under Section 313 of the Cr.P.C., the petitioner submitted an application at Exh. 80 dated 26.10.2021, tendering his examination-in-chief. 2.3 The learned Principal Civil Judge and Judicial Magistrate First Class at Harij, vide its order dated 7.12.2021, dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon the judgment of the Coordinate Bench of this Court in the case of Rakeshbhai Maganbhai Barot v. State of Gujarat, reported in 2019 (4) GLR 2719. 6.2 By making above submissions, Mr. Joshi urged this Court to allow the present petition. 7. Per contra, Mr. Pranav Trivedi, learned Additional Public Prosecutor for the respondent State, vehemently opposed the present petition, contending that the orders passed by the courts below are perfectly justified and within the four corners of law. Mr. Trivedi submitted that present application appears to have been filed by the accused is with an intention to derail the proceedings. He further submitted that normally, the accused can give his evidence on oath as envisaged under Section 243 of the Cr.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid question, it would be apt to note relevant provision of Section 315 of the Cr.P.C., which reads, thus; 315. Accused person to be competent witness: (1) Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial: Provided that (a) he shall not be called as a witness except on his own request in writing; (b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial. (2) Any person against whom proceedings ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination-in-chief. Admittedly, no written request made to the concerned court as envisaged in Section 315 of the Cr.P.C. Keeping in mind this peculiar and distinguishing fact and the mandate of Section 315 of the Cr.P.C., in my considered opinion, both the courts below have committed no mistake in not accepting the examination-in-chief of the present petitioner. 13. So far as the reliance place by learned counsel for the petitioner in judgment of the Coordinate Bench of this Court in the case of Rakeshbhai Maganbhai Barot (supra) is concerned, in the said judgment, the Coordinate Bench has noted the facts as under : 2. It appears from the materials on record that the respondent no.2 herein original complainant filed a private complaint in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e evidences of the witness on oath instead of recording it orally. Ld. Court can direct the witnesses of the complainant and accused to remain present for cross - examination as and when the Ld. Court calls for. 4) The Hon'ble Supreme Court has passed this judgment after considering the decision in the case of Mandavi Cooperative Bank Ltd. v/s. Nimesh Thakore and, therefore, the directions given in this judgment should be followed by all the courts of the country. 5) Before disposing of the present application, the court should take into consideration that, not only the courts should follow the laws, but they should also follow the directions given by the Hon'ble Apex Court. In the aforesaid circumstances, by submitting this applica ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
