IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE THIRTEENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL PETITION NO.6269 OF 2009 Between: Overseas Legends Incorporation, a partnership firm rep. By its Managing Partner C. Vijay Kumar. ..... PETITIONER. AND Sai Srinivas Paraboiled Modern Rice Mill, Huzurnagar, Nalgonda District, Rep. By its managing partner P. Laxminarasimha Rao and another. ..... RESPONDENTS. Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the grounds filed therewith, the High Court will be pleased to quash the order dated 15-07-2009 in Crl.M.P. No.1391 of 2009 in C.C. No.217 of 2005, on the file of Judicial Magistrate of First Class, Huzurnagar, Nalgonda District. The Petition coming on for hearing, upon perusing the Petition and the grounds filed in support thereof and upon hearing the arguments of Mr. B. VIJAYSEN REDDY, Advocate for the Petitioner and of the Public Prosecutor on behalf of the second respondent, the Court made the following: HONOURABLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL PETITION NO.6269 OF 2009 ORDER: Heard Sri. B. Vijaysen Reddy, learned counsel for the petitioner and Sri A. Ramesh, learned counsel, who entered appearance on behalf of the learned Public prosecutor for the second respondent. No notice is being ordered to the first respondent as the order being passed herein at the stage of admission cannot be considered to have any impact on the rights and interests of the first respondent. The petitioner, who is facing prosecution in C.C. No.217 of 2005 in respect of an offence punishable under Sections 138 and 142 of the Negotiable Instruments Act, filed Criminal M.P. No.1391 of 2009 before the trial Court under Section 311 of the Code of Criminal procedure to reopen the case for purposes of his defence evidence. The contents of the petition apart from denials of the offence and making allegations against the first respondent, further stated that an affidavit dated 29-02-2008 which was placed on record of the case by the first respondent was extracted by force, while the petitioner was in jail, under threat to his life and the petitioner desired to adduce evidence about the same as otherwise the said affidavit will be injuring the petitioner's right to defence. In the counter filed by the first respondent, the first respondent denied the allegations about the circumstances leading to the filing of the affidavit contending that it was the counsel for the petitioner who drafted the affidavit and obtained the signature of the petitioner on the same and filed it into the court on 29-02-2008. It was further stated in the counter that the counsel for the petitioner appeared before the court and reported the compromise. The trial Court passed the impugned order on 15-07-2009 referring to the history of the case and the prolongation of the proceedings by the accused in spite of giving many opportunities and the dismissal of the petition by the trial Court led the petitioner to approach this Court with a request to set-aside that order and consider his request. The certified copy of the affidavit in question has been furnished by Sri B. Vijaysen Reddy, learned counsel for the petitioner and the said affidavit, which appears to have been given on 29- 02-2008 by the petitioner under attestation of the Superintendent of Sub-Jail, Huzurnagar, only stated about the petitioner desiring to settle the matter with the complainant out of court and further about the offer of the petitioner to pay the amount under the cheque within 15 days from the date of his release on bail. The affidavit in no manner referred to the petitioner admitting any of the necessary ingredients for constituting the offences punishable under Section 138 read with Section 142 of the Negotiable Instruments Act and either the petition or the counter does not show that this affidavit has been admitted into evidence. The material on record is only as though, filed by the learned counsel for the petitioner himself into Court, the affidavit is part of the record. Firstly, if the affidavit is not part of the documentary evidence admitted in the case and has not been made part of the evidence recorded on being confronted to any witness during trial, the trial Court probably could not have looked into it for the determination of the guilt or otherwise of the accused for the offence. It could not have been taken as an admitted document without being proved through any witness examined during trial. Even otherwise, even if the affidavit were to be acted upon at face value, the readiness of the petitioner to settle the matter with the complainant out of Court or his readiness to pay the amount under the cheque within 15 days from his release on bail, obviously to facilitate his release on bail could not have been considered as circumstances probablising or confirming any conclusion about the possible guilt of the accused under Section 138 read with Section 142 of the Negotiable Instruments Act. Therefore, it is made clear that the said affidavit can not form part of the consideration by the Trial court of the liability of the petitioner for any offence under Section 138 read with section 142 of the Negotiable Instruments Act. There remains no further necessity to reopen the case for the evidence of the petitioner who did not claim to have any further defence evidence to be produced. Therefore, while confirming the order passed by the Judicial Magistrate of First Class, Huzurnagar, on 15-07-2009 in Crl. M.P. No.1391 of 2009 in C.C. No.217 of 2005, the trial Court is directed to determine the Criminal case on merits in accordance with law being uninfluenced by any of its own observations in the impugned order or any observations in this order and also without referring to or relying on the affidavit of the petitioner dated 29-02-2008. The Criminal petition is ordered accordingly. ____________________ G.BHAVANI PRASAD, J Date: 13-08-2009. Dsh.