A HASAN BAVA Vs. P V UPADHYA

JUDGEMENT

(1.) IN this petition filed under Section 482 of the Cr. P. C. , appellant in cri. Appeal No. 306 of 2002 pending in the Court of the XII Additional city Civil and Sessions Judge, Bangalore City, has challenged the order dated 24-11-2002 passed by the said Court. By that order, the learned additional Sessions Judge has dismissed the application of the ' petitioner filed under Section 391 of the Cr. P. C. praying for permission to adduce his evidence and the evidence of two witnesses.

(2.) THE petitioner was the accused in C. C. No. 35056 of 2000 on the file of XVI Additional Chief Metropolitan Magistrate for an offence punishable under Section 138 of the Negotiable Instruments Act. After closure of the complainant's evidence, his statement under Section 313 of the Cr. P. C. was recorded on 18-1-2002 and the case was posted to 29-1-2002 for defence evidence. On the ground that for several dates, the accused/petitioner failed to adduce defence evidence, his case was closed by the learned Additional Chief Metropolitan Magistrate and after hearing the arguments, he passed a judgment on 5-3-2002 convicting the petitioner for an offence punishable under Section 138 of the Negotiable instruments Act and sentencing him to pay a fine of Rs. 15,05,000/-, in default, to undergo S. I. for one year. That judgment of conviction and sentence has been challenged by the petitioner before the learned XII additional City Civil and Sessions Judge, Bangalore City, in Criminal appeal No. 306 of 2002. In that appeal, he filed on 17-10-2003 an application under Section 391 of the Cr. P. C. for permission to adduce defence evidence on the ground that sufficient opportunity had not been given to him to lead defence evidence and to advance arguments. It was contended by him that cheques in question were given to one Ravikumar in the presence of two witnesses and the evidence of those two witnesses is very much necessary for the just decision of the case. He therefore prayed for an opportunity to tender his evidence and the evidence of those two witnesses. That application was considered by the learned additional Sessions Judge and he came to the conclusion that despite grant of several opportunities, the petitioner had failed to adduce defence evidence and that therefore there was no substance in the contention of the appellant/petitioner. In the result, he dismissed the petitioner's application by order dated 24-11-2002. The present petition has been filed challenging the said order.

(3.) SRI Shankarappa, learned Counsel for the petitioner submits that a perusal of the order sheet shows that proper opportunity had not been given to the petitioner and that therefore the matter requires consideration by this Court. He argues that the petitioner was abroad during the relevant period and due to ill-health, he could not come and attend the case for the purpose of adducing defence evidence. It is further argued that considering the materials now placed by the petitioner before the Appellate Court evidencing ill-health suffered by the petitioner during the relevant period, the petition may be allowed.