Order 3

Order Details: Order
Pdf Text: 1 C. C. No.1951/SS/2018
Exh.64
ORDER BELOW EXH.64
This is an application filed by accused for recording
his statement under Section 313 of Cr.P.C. through advocate.
2. Brief contention in the application are as under :
Complainant has filed complaint under Section 138
of N.I. Act against accused. It is next contended that evidence
of complainant is filed and his cross-examination was also
conducted. It is further contended that his statement under
Section 313 of Cr. P.C. was also recorded and matter ultimately
posted for final argument. It is also contended that one more
witness i.e. bank witness was permitted and his evidence was
also recorded with cross-examination. He has contended that
once again posted for recording statement of accused under
Section 313 of Cr. P.C. but during last couple of years, he had
gone through two spondylitis operation which were
unsuccessful and became more complicated for him even to
walk. It is further contended that he has lost control on body
strength and totally bad ridden for long. It is also contended
that at the same time he is also facing memory loss problem for
which medical certificate is already filed on record. He has next
contended that he is not able to even walk from one place more
then 10-15 minutes without support of two persons and due to
old age it is more difficult for him to recover earliest as expected
from ill health and doctor had advised him for full rests to avoid
further injury due to imbalance. It is lastly contended that his
earlier statement was recorded by him personally but now he is
personally not in a position to attend this Court. Hence, prayed
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2 C. C. No.1951/SS/2018
Exh.64
to allow the application and record additional statement
through his advocate to avoid delay of hearing. Hence, this
application.
3. Complainant has filed his say overleaf the
application and submitted his objection to allow the application.
4. Heard advocate for both sides at length.
5. Perused record of case. Record speaks that
complainant has filed pursis on 13/06/2023 closing his
evidence. After that statement of accused under Section 313 of
Cr. P.C. were recorded on 04/10/2023 in person. After that
complainant again moved an application on 02/01/2024
seeking permission to recall bank witness and the same was
allowed. Later on, complainant examined bank witness as C.W.2
who was cross-examined by accused. Then complainant again
filed evidence close pursis on 23/09/2024. So the matter was
posted for recording further statement under Section 313 of Cr.
P.C. of accused in respect of incriminating circumstances
appearing in the evidence of C.W.2 against him. Contention of
accused that he has undergone through spondylitis operation
and is unable to walk is not challenged by the complainant. His
further contention that he is bed ridden from long time is also
not disputed by complainant. Considering the undisputed
medical condition of accused, no prejudice will cause to the
complainant if the statement of accused under Section 313 of
Cr. P.C. is recorded through his advocate. Judgment of the
Hon’ble Supreme Court in Basavaraj R. Patil V/s. State of
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3 C. C. No.1951/SS/2018
Exh.64
Karnataka is applicable to facts of present case. In the said
ruling the Hon’ble Apex Court held that if the accused who is
already exempted from personally appearing in the Court,
makes an application to the Court praying that he may be
allowed to answer the question without making his physical
presence in the Court on account of justifying exigency the court
can pass appropriate order thereon. Statement of accused
appears to be genuine. Application deserves to be allowed.
Hence, I proceed to pass following order :
ORDER
1. Application is allowed.
2. Questionary of statement under Section 313 of Cr. P.C. be
supplied to the advocate of accused.
3. Said questionary be returned by duly answering by the
accused together with properly authenticated affidavit
that those answers are given by the accused himself.
4. Accused should affix his signature on all sheets of
answer questionary.
5. If accused fails to return the questionary duly answered
as aforesaid till next date, he shall forfeit his right to
seek personal exemption from Court during such
questioning.
Date : 14/01/2025
Sd/-
Shri. R.D.Dange
Judicial Magistrate, First Class
63rd Court, Andheri, Mumbai.
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