IN
THE COURT OF LD. METROPOLITAN MAGISTRATE
C.
C. NO. /SS/05
KSL & INDUSTRIES LTD. … COMPLAINANT
V/S.
SNOW WHITE INTRA LTD. & ORS. … ACCUSED
APPLICATION ON BEHALF OF THE ACCUSED UNDER RULE 5 OF CHAPTER VII
OF CRIMINAL MANAUL HIGH COURT
MAY
IT PLEASE YOUR WORSHIP:
On behalf of
the Accused above named, it is most respectfully submitted as follows:-
1)
The Accused above named along with others
is charged for an alleged offence u/s. 138 of the Negotiable Instruments
Act. The alleged offence is
non-cognizable, bailable and summary triable in nature.
2)
It is submitted that the particulars of
charge were explained to the Accused and their plea of not guilty was
recorded. The aforesaid case was
thereafter adjourned for recording the evidence of the Complainant.
3)
It is submitted that the Complainant thereafter
laid the evidence of Mr. Dhananjay Kumar Verma (P.W.No.1) in the form of
affidavit as and by way of his examination-in-chief u/s. 145 (1) of Negotiable
Instruments Act. The Applicant states that the Advocate for the
Accused commenced the cross-examination of the said Mr. Dhananjay Kumar
Verma. It is submitted that since the
P.W.No.1 was not in a position to answer various questions put to him in
cross-examination with accuracy and precision, the evidence of the P.W.No.1
could not be completed inspite of earnest efforts made by the Advocate for the
Accused and the cross-examination of the P.W.No.1 had to be adjourned from time
to time on account unpreparedness of the said witness.
4)
It is submitted that the Board of Directors of the Complainant
in their meeting held on 12.07.2007 appears to have passed a resolution for
authorizing Mr. Nigam Kumar and Ms. Sandhya L. Nalawade, legal representatives
of the complainant for representing the Respondents in the aforesaid
cases. It is submitted that inspite of
the said resolution having been passed by the Directors of the complainant in
their meeting held on 12.07.2007, the complainant or its Advocate never placed
the same before the Ld. Magistrate or conveyed the said fact to the Ld.
Magistrate till 14.12.2007. It is
submitted that on 14.12.2007 the Advocate for the complainant presented an
application accompanied by the copy of extract of resolution dated 12.07.2007
passed by the complainant and prayed for substituting Mr. Nigam Kumar in place
of P.W.No.1 in the above case. It is
submitted that after perusing application and reply of the Accused and after
hearing the submissions of both the parties on the said application, this was
pleased to allow the application for substitution filed by the
complainant.
5)
It is submitted that the Complainant thereafter
laid the evidence of Mr. Nigam Kumar in the form of affidavit as and by way of his
examination-in-chief u/s. 145 (1) of Negotiable Instruments Act along
with certain documents.
6)
It is submitted that the said Mr.Nigam
Kumar in his affidavit filed in the above case has never claimed to be in the
employment or service of the complaint at the relevant time when the alleged transaction
took place. The said Mr.Nigam Kumar, was
not in the employment or service of the Complainant prior to 2007. The said Mr.Nigam Kumar therefore cannot be
said to have any personal or first hand knowledge with regard to the facts
deposed by him in his affidavit filed in the above case.
7)
It is submitted that in para 3 of his
affidavit filed in the above case the said Mr.Nigam Kumar has deposed on oath
as under:
“I say that I am aware about the facts of this case and am able
to depose the same before this Court on the basis of my personal knowledge
and/or the documents available with the Complainant”
8)
It is submitted that in the verification
clause of the said Mr.Nigam Kumar set out at the foot of his aforesaid
affidavit evidence, the said Mr.Nigam Kumar has made declaration as under:
“I, Mr. Nigam Kumar the Authorised Representative of the
Complainant abovenamed having Office at Krishna House, Raghuvanshi Mills
Compound, Lower Parel, Mumbai – 400 013 do hereby solemnly affirm and state
that whatever stated hereinabove is true and correct to the best of my
knowledge and belief and I believe the same to be true”.
9)
It
is submitted that the Hon’ble Bombay High Court vide its Criminal Manual of
1980 has made specific provision governing the filing of affidavits in the
Courts of Law, in Chapter VII of the said Manual. It is submitted that as per Rule 5 (1) of the
said Chapter VII of Criminal Manual framed by the Hon’ble Bombay High Court,
every affidavit is required to satisfy as to what portion of the statement is
made on the declarant’s knowledge and what portion of the statement is made on
his information or belief. The sub rule
(2) of Rule 5 of the said Chapter VII further provides that when a particular
portion is not within the declarant’s own knowledge but it is stated from
information obtained from others, the declarant must use the expression “I am
informed” and if it is made on belief should add “I verily believe it to be
true”. As per the aforesaid sub rule the
declarant further required to state the source or ground of information or belief
and giving name and address of, and sufficiently described for the purpose of
identification, the person or persons from whom he had received such
information.
10)
It
is further submitted that sub rule 3 of rule 5 of the said Chapter VII further
provides that when the statement of the declarant rests on facts disclosed in
documents or copies of documents procured from any Court or other person, the
declarant shall state the source from which they were procured and his
information, or belief, as to the truth of the facts disclosed in such
documents.
11)
It
is submitted that the provision of rule 5 of Chapter VII of the Criminal Manual
framed by the Hon’ble Bombay High are reproduced in verbatim for quick
reference of this
5. (1) Every
affidavit should clearly specify what
portion of the statement is made on the declarant’s knowledge and what portion of the statement is made on his
information or belief.
(2) When a particular portion is not
within the declarant’s own knowledge but it is stated from information obtained
from others, the declarant must use the expression “I am informed” and if it is
made on belief should add “I verily believe it to be true”. He must also state the source or ground of the
information or belief, and give the name and address of, and sufficiently
described for the purpose of identification, the person or persons from whom he
had received such information.
(3) When the statement rests on facts
disclosed in documents or copies of documents procured from any Court or other
person, the declarant shall state the source from which they were procured and
his information, or belief, as to the truth of the facts disclosed in such
documents.
12)
It
is submitted that the said Mr.Nigam Kumar has not filed his affidavit in the
above case in accordance with the provision appearing in Chapter VII of the
Criminal Manual of Bombay High Court. Further,
the said Mr.Nigam Kumar has not disclosed his full name, father’s name,
surname, profession and place of residence in his affidavit filed on behalf of
the Complainant in the above case. It is
submitted that in the absence of aforesaid details, which are required to be
deposed mandatory as per rule 3 of Chapter VII of the Criminal Manual, it will
be impossible for this Hon’ble Court to initiate any action for the offence of
perjury or any other offence committed in the administration of justice by the
said Mr.Nigam Kumar since the said witness can successfully evade the service
of process upon him by suppressing this details. It is submitted that in the case of
Savithramma Versus Cecil Noronha, reported in 1988 (Supp.1) SCC 655 : 1988
AIR(SC) 1987, the Hon’ble Supreme Court has held that “Affidavit is a mode of placing evidence before the Court. A party may
prove a fact or facts by means of affidavit before this Court but such
affidavit should be in accordance with Order XI, Rules 5 and 13 of the Supreme
Court Rules. The purpose underlying Rules 5 and 13 of Order XI of the Supreme
Court Rules is to enable the Court to find out as to whether it would be safe
to act on such evidence and to enable the court to know as to what facts are
based in the affidavit on the basis of personal knowledge, information and
belief as this is relevant for the purpose of appreciating the evidence placed
before the Court, in the form of affidavit. The importance of verification has
to be judged by the purpose for which it is required. It is only on the basis
of verification, it is possible to decide the genuineness and authenticity of
the allegations and the deponent can be held responsible for the allegations
made in the affidavit. In this Court evidence in support of the statements
contained in writ petitions, special leave petitions, applications and other
miscellaneous matters, is accepted in the form of affidavit filed by the
parties concerned. It is therefore necessary that the party stating facts must
disclose as to what facts are true to his personal knowledge, information or
belief. If the statement, of facts is based on information the source of
information must be disclosed in the affidavit An affidavit which does not
comply with the provisions of Order XI of the Supreme Court Rules, has no
probative value and it is liable to be rejected”. It is further submitted
that in the aforesaid judgment the Hon’ble Supreme Court further observed and
reiterated that “We are constrained to observe that of late
affidavits are being filed in this Court in a slipshod manner without having
any regard to the Rules. Affidavits are being filed by persons who could have
no personal knowledge about the facts stated in the affidavit. Deponents of
affidavits pay no attention to verification, although this court laid stress on
this aspect as early as 1952. In State of Bombay v. Purushottam Jog Naik, 1952
SCR 674 : (AIR 1952 SC 317), a Constitution Bench considering the importance of
verification of an affidavit observed (at p. 319 of AIR)” : In view of the
principles laid down in the said judgment the Affidavit filed by the said Nigam
Kumar, as and by way of his examination in chief is defective and liable to be
rejected.
13)
It
is submitted that similarly in the case of
Sukhvinder pal Bipan Kumar Versus State of Punjab reported in 1982
AIR(SC) 65 : 1981 (3) Scale 1795, it
has been 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”. It
is submitted that the contents of the Affidavit which are merely declared on
oath as “ correct to the best of deponent’s knowledge”, without disclosing the
source of knowledge is held to be no Affidavit
in the eyes of Law.
It is further
submitted that the Constitutional Bench of the Hon’ble Supreme Court in the
case of State of Bombay Versus Purushottam Jog Naik, reported in A. I. R. 1952 S.C. page 317 has sounded a not of caution and held that “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 modeled 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 personal knowledge the sources of
information should be clearly disclosed.” It is submitted that since the
said Nigam Kumar has also filed his Affidavit in a slip shod manner, without complying
with the provisions of Rule 5 of Chapter VII of Criminal Manual framed by the
Hon’ble High Court, the same is liable to be rejected. The Accused are entitled
to know the portion or portions of the Affidavit of the said Nigam Kumar, which
are within his personal knowledge and
the portion or portions of the said information, which are based on the
information and belief. The Accused are further entitled to know the source or ground of the information or belief, including the name and address
of, and description of the persons, for the purpose of identification, from
whom the said Nigam kumar claims to have
received such information.
14)
It
is submitted that before the commencement of cross-examination of the said
Mr.Nigam Kumar with regard to the statements made by him in his aforesaid
affidavit, the Accused is desirous to know and understand the
averments/statements made in the affidavit of the said Mr.Nigam Kumar, which
are in his personal knowledge. It is submitted
that since the said Mr.Nigam Kumar has not specified and or described the
particular portion or portions of his affidavit in his personal knowledge, the
Accused is bound to suffer grave prejudice and serious miscarriage of justice
in conducting the cross-examination of the said witness. It is submitted that the said Mr.Nigam Kumar
cannot be allowed or permitted to suppress from this
Under the
circumstances, the Accused most respectfully pray that this
Dated
the 30th day of
December
2008 JAYESH J. KANANI
Mumbai ADVOCATE
FOR THE ACCUSED
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