BHINANG MAHENDRABHAI BHARODIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner herein is the original accused in Criminal Case No.46395 of 2015 instituted by the respondent No.2 for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the N.I. Act"). The challenge is given to the order passed by the Court of learned 5th Additional Sessions Judge, Surat in Criminal Revision Application No.290 of 2018 dtd. 19/12/2018 whereby the said revision application was dismissed and the order passed by the Court of learned 9th A.C.J.M., Surat below application Exhibit-43 in Private Criminal Case No.46395 of 2015 dtd. 27/6/2018 was confirmed.

(2.) The petitioner herein had moved application Exhibit-43 seeking permission to examine six witnesses as defence witnesses. By order dtd. 27/6/2018, the trial Court partly allowed the said application and granted permission to examine witness No.6, Alen Mahendrabhai Barodiya, who is the brother of the petitioner as a Defence Witness. Aggrieved by the said order, the petitioner had preferred revision application under Sec. 397 of the Code of Criminal Procedure being Criminal Revision Application No.290 of 2018 before the Sessions Court, Surat. The revisional Court dismissed the said application preferred by the petitioner by way of impugned order dtd. 19/12/2018. Hence, this petition.

(3.) Learned Advocate Ms. Amrita Ajmera appearing for Mr. Daifraz Havewalla for the petitioner submitted that both the Courts below have erred in concluding that Witness Nos.1 to 5 cited by the petitioner do not appear to be relevant Defence Witnesses. She submitted that the Courts below ought to have considered the fact that the witnesses, who were sought to be examined as Defence Witnesses, were acquainted with the facts and circumstances of the case and that there is no embargo that relatives of the complainant could not be cited as defence witness/s of the accused.