1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1697 OF 2010 M/S TRIUMPH INTERNATIONAL FINANCE INDIA LIMITED & ORS ..... Applicants. V/s EUROPEAN INVESTMENT INDIA LTD & ANR. ...... Respondents. --- Mr. Sanjog Parab i/b Sartay Shaikh & R.B. Mungekar for the applicants. Mrs. M.R. Tidake, APP for the State. ---- CORAM: V. M. KANADE, J. DATE : 7TH APRIL 2010 P.C.:- 1. Heard the learned Counsel appearing on behalf of the applicant. 2. By this application, the applicant is challenging the order passed by the Trial Court dated 20/01/2010 permitting the complainant to file affidavit-in-lieu of evidence. The learned Counsel for the applicant submitted that, initially, the complainant had filed an affidavit in lieu of evidence and filed relevant documents along with the said affidavit. This application was filed on 09/01/2008. Applicants, thereafter, filed their objection to the said affidavit by their application dated 17/03/2008. The complainant on 22/1/2008 filed his say 2 and stated that he would like to withdraw the said affidavit in view of the objection of the accused and expressed his willingness to give oral evidence for the purpose of proving the contents of the affidavit of evidence. In view of the say filed by the complainant, the learned Trial Court was pleased to allow the complainant to give oral evidence. Thereafter, again, an application was filed by the complainant for permitting him to file additional affidavit in lieu of evidence. In the said application, it was stated that in view of the judgment in KSL Industries Ltd v. Mannalal Khandelwal & another1, he wanted to file his affidavit in lieu of evidence. 3. The learned Counsel appearing on behalf of the applicants submitted that the complainant, after having withdrawn his affidavit in lieu of evidence, ought not to have been permitted by the learned Magistrate to again file additional affidavit in lieu of evidence. It is submitted that in the application which was filed by the present applicants for recalling the said order, it was specifically urged that the applicants have no objection if the complainant is permitted to lead oral evidence. The learned Counsel for the applicants invited my attention to the earlier order passed by the Magistrate and say filed by the complainant. It is submitted that the complainant had taken adjournments for 8 to 9 months and, thereafter, this application was filed. It is further submitted that the complainant could not file two affidavits in lieu of evidence in the same case. 1 2005 ALL MR (Cri) 1105 3 4. I have heard the learned Counsel appearing on behalf of the applicants at length. I have perused the impugned order and the other orders which were passed on the earlier applications. In my view, no case is made out by the learned Counsel for interfering with the order passed by the Trial Court while entertaining the application of the applicant under section 482 of the Criminal Procedure Code. It is no doubt true that the complainant, initially, had filed his say in which he had stated that he would lead oral evidence. However, thereafter, again, the second application was filed. A reference was made to the order in the case of Rajeev Khandelwal v. State of Maharashtra passed by the learned Single Judge of this Court dated 06/05/2009 in Criminal Writ Petition No.411 of 2009 It is also true that the Apex Court in 2005 itself had held that in view of the provisions of section 145(2), the complainant can be permitted to file affidavit in lieu of evidence and this aspect was quite clear when the say was filed by the complainant. Yet, in my view, merely because on earlier occasion the complainant had withdrawn the affidavit in lieu of evidence and had agreed to lead oral evidence that by itself would not preclude him at subsequent stage to seek permission of the Court to file affidavit in lieu of evidence in view of specific provisions of section 145(1) and (2). Moreover, no prejudice would be caused to the applicants herein in view of the observations made by the Trial Court. The Trial Court has observed that its Predecessor has tentatively marked all the documents produced by the complainant as exhibits and the learned Trial Judge has 4 observed that before proceeding to record the cross- examination, the Court will have to consider the objection as regards proof of documents and the said objection was kept open. Therefore, in my view, no prejudice is caused to the applicants as a result of the impugned order passed by the Trial Court. Hence, it is not possible to accept the submissions made by the learned Counsel appearing on behalf of the applicants. 5. Application is accordingly dismissed. (V.M. KANADE, J.)