Interim Order 1

Order Details: Order
Pdf Text: 1 C. C. No. 654/SS/2018
ORDER BELOW EXHIBIT NO. 41
The accused has forwarded present application with a prayer to
discard the evidence affidavit of Mr. Gouresh Prakash Mahadik on behalf of
complainant.
2. It is submitted by the accused that, evidence affidavit of Mr. Gouresh
Prakash Mahadik has filed on behalf of complainant. It is the submission of
the accused that as per the Criminal Manual Chapter VII, Rule 5 (1), the
affidavit is required to satisfy as to what portion of the statement is made on
the declarants knowledge and what portion of the statement is made on his
information and belief. It is further submitted that, as per rule 5 (3) of
Chapter VII of Criminal Manual the declarant has to disclose the source of
information. Further it is submitted that, the complainant has not disclosed
the source of his knowledge. Therefore, he submitted that the evidence
affidavit filed by the complainant is not as per the Rule 5 (1) and (3) of
Chapter VII of Criminal Manual and therefore prayed to discard the same.
3. The complainant has filed his reply at Exh. 44. As per the reply of the
complainant, the complainant has disclosed all the facts as per his
knowledge. He further submitted that, the application is not tenable. He
further submitted that in the evidence affidavit it is mentioned that, the
contents are true and correct as per his knowledge and information. Further
he submitted that, accused has an opportunity to cross-examine the
complainant. He was earlier appointed as a Messenger/Peon with the
complainant. Thereafter, he was working and assisting with Mrs. Radhika
Parulkar. Radhika Parulkar was working with complainant as a System
Manager Legal. He is aware about the all the documents and transaction.
From 01/08/2018, he is working as a legal assistant. Therefore, lastly prayed
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to reject the application.
4. Heard. Perused the application and say.
5. The present complaint came to be filed U/s. 138 of Negotiable
Instruments Act. It seems from the record that, the complainant has filed
his evidence affidavit below Exh. 39 and matter is posted for further
examination-in-chief. By way of present application, the accused has raised
an objection that, the evidence affidavit filed by the complainant is not as per
the Rule (1) and (3) of Chapter VII of Criminal Manual. It is the contention
of the accused that, the complainant has to disclose in his evidence affidavit
that, on what basis he has made statement in the evidence affidavit and what
is the source of his information and knowledge. Further accused has
submitted that if he has relied upon the document, then the source of that
document has to be disclosed. Ld. Advocate for the accused placed reliance
on the decision of Hon’ble Supreme Court of India in Savitharamma V/s.
Cecil Naronha, 1988 AIR 1987 it has held that,
“We are constrained to observe that of late affidavit are being filed
in this Court in a slipshod manner without having any regard to the
Rules. Affidavits are being filed by person who could have no
personal knowledge about the facts stated in the affidavit.
Deponents of affidavits pay no attention to verification, although
his court laid stress on this aspect as early as 1952. In State of
Bombay v Purushottam Jog: Naik, [1952] SCK 674, a Constitution
Bench considering the importance of verification of an affidavit
observed:
We wish, however, to observe that the verification of the
affidavits produced here is defective. The body of the
affidavit discloses that certain matters were known to the
Secretary who made the affidavit personally. The verification
however states that everything was true to the best of his PG
NO 565 information and belief. We point this out as slipshod
verification of this type might in a given case lead to a
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rejection the affidavit. Verification would invariably be
modeled on the lines of Order XIX, Rule 3, of the Civil
Procedure Code, whether the Code applies in terms or not.
An when the matter deposed to is not based on personal
knowledge the sources of information should be clearly
disclosed.”
Further he further placed reliance on the decision of Hon’ble Supreme Court
of India in State of Bombay V/s. Purshottam Jog Naik, 1952 AIR 1952. It
has held that,
“We wish, however, to observe that the verification of the affidavits
produced here is defective. 'The body of the affidavit discloses that
certain matters were known to the Secretary who made the affidavit
personally. The verification however states that everything was true to
the best of his information and belief. We point this out as slipshod
verifications of this type might well in a given case lead to a rejection of
the affidavit. Verifications should invariably be modelled on the lines of
Order XIX, rule 3, of the Civil Procedure Code, whether the Code applies
in terms or not. And when the matter deposed to is not based on person-
al knowledge the sources of information should be clearly disclosed. We
draw attention to the remarks of Jenkins C.J. and Woodroffe J. in
Padmabati Dasi v. Rasik Lal Dhar(1) and endorse the learned Judges'
observations.”
He further placed his reliance on the decision of Hon’ble Supreme court of
India in Sukhvinder Pal Bipin Kumar V/s. State of Punjab & Ors, 1982 AIR 65
It has held that,
“In the case of M/s Sukhwinder Pal Bipan Kumar in support of the
petition, there is an affidavit of one Raj Kumar, claiming to be a
partner, who asserts that the allegations in paras 9 and 12 are 'correct
to the best of my knowledge'. To say the least, this is no affidavit at
all. Under order XIX, Rule 3, of the Code of Civil Procedure, 1908, it
was incumbent upon the deponent to disclose the nature and source
of his knowledge with sufficient particularity. The allegations in the
petition are, therefore, not supported by an affidavit as required by
law. That being so, the State Government was fully justified in answer,
'Denied. There is no restriction on the movement of wheat'. The
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Deputy Secretary in his counter affidavit has further denied that the
impugned orders of suspension were passed on the direction of the
State Government. In our view, the allegations in the writ petitions
are not sufficient to constitute an averment of malafides so as to
vitiate the impugned orders of suspension. The Court would be
justified in refusing to carry out investigation into allegations of
malafides, if necessary particulars of the charge making out a prima
facie case are not given in the petition. The burden of establishing
malafides lies very heavily on the person who alleges it. The
petitioners who seek to invalidate the impugned orders of suspension
must establish the charge of bad faith or bias or misuse by the
Government of its powers. The impugned orders of suspension ex
facie show breaches of conditions Nos. 4, 8 and 10 of the license by
the petitioners. The question whether or not, they committed the
breaches is a matter for inquiry by the licensing authorities under sub-
cl. (1) of cl. 11 of the Order.”
He further placed his reliance on the decision of Hon’ble Bombay High Court
in Kesao Narayan Patil V/s. State of Maharashtra, reported in 2010 (2) BCR
695. In the cited decision, the ratio laid down by Hon’ble Supreme Court of
India in A. K. K. Nambiar V/s. Union of India & Another [AIR 1970 SC652 :
(2008) 1 SCC 560] has reiterated. It has been held that,
“The reasons for verification of affidavits are to enable the Court to find
out which facts can be said to be proved on the affidavit evidence of rival
parties. Allegations may be true to knowledge or allegations may be true
to information received from persons or allegations may be based on
records. The importance of verification is to test the genuineness and
authenticity of allegations and also to make the deponent responsible for
allegations. In essence verification is required to enable the Court to find
out as to whether it will be safe to act on such affidavit evidence. In
absence of proper verification, affidavits cannot be admitted in evidence.”
I have minutely perused the cited decision. In the case in hand, the
complainant has filed his evidence affidavit below Exh. 39 on 28/10/2021. I
have perused the verification clause of the evidence affidavit which reads as
follows:
“ I, Mr. Gouresh Prakash Mahadik, Legal Assistant of the
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Complainant, Adult, and Authorized Representative of the
Complainants’ Company having its address at, At C – 402, Sahar
Classique, Sahar Road, Opp. P & T Colony, Chakala, Andheri (E),
do hereby solemnly affirm and state that what is stated in the
foregoing paragraphs 1 to 21 are true to my own knowledge and
based on information and belief and I believe the same to be
true.”.
In the verification clause of the evidence affidavit it is mentioned by
the complainant that, whatever stated in the foregoing paragraph is true and
correct as per his knowledge and information. Therefore, the complainant
has mentioned in his evidence affidavit that the contents of the evidence
affidavit are true and correct as per his knowledge and information.
Therefore, it seem that, the objection raised by the accused is not
sustainable. Further the accused has a chance to cross-examine the
complainant. Therefore, the application is devoid of merit and liable to be
rejected. Hence, I pass following order:-
ORDER
Application is rejected.
Date : 12/08/2026
Sd/-
(Y. P. Pujari)
Judicial Magistrate (First class)
48th Court, Andheri, Mumbai.
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