1 abs FARAD CONTINUATION IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3868 OF 2009 ------------------------------------------------------------------------------------------------------------------ Office Notes, Office Memoranda of Court's or Judge's Orders Coram, appearances, Court's Orders or directions and Registrar's Orders Mr. V.L. Shah for the applicant. Mr. R.M. Upadhyay for respondent no.1. Ms. S.V. Gajare, A.P.P. for the State. CORAM : D.G. KARNIK, JJ. DATE : 20TH NOVEMBER 2009 P.C. : 1. Heard learned counsel for the applicant. 2. I am not inclined to interfere in the order which is interlocutory. Apart from that, even on merits I am not satisfied that the order requires interference. 3. The respondent no.1 filed a complaint 2 against the applicant-accused under section 138 of the Negotiable Instruments Act. After the appearance of the applicant-accused and at the hearing, the respondent filed an affidavit in lieu of his examination in chief as per the order of the Magistrate. The applicant thereafter made an application for deleting paras 3, 4 and 5 from the affidavit of the respondent on the ground that facts mentioned therein are not relevant and in any event were not mentioned in the complaint. 4. What is stated in pras 3, 4, and 5 of the affidavit is the underlying transaction showing that the dishonoured cheque was issued in relation to an existing liability. Mention of these facts cannot be irrelevant and paras 3, 4 and 5 in the affidavit cannot be deleted at this stage. As regards non-mention in the complaint and effect thereof, the Magistrate shall consider it appropriately while passing the final judgment. 3 5. With these observations, the application is rejected. (D.G. KARNIK, J.)