Smt Sharada Patali vs The Directorate Of Enforecement
2023 Latest Caselaw 2336 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 21 ST DAY OF APRIL, 2023

                        BEFORE

       THE HON'BLE MR. JUSTICE K.NATARAJAN

          CRIMINAL PETITION NO.2927 OF 2023
                   CONNECTED WITH
          CRIMINAL PETITION NO.2929 OF 2023,
          CRIMINAL PETITION NO.2931 OF 2023,
          CRIMINAL PETITION NO.3101 OF 2023

IN CRIMINAL PETITION NO.2927 OF 2023

BETWEEN

SMT. SHARADA PATALI
W/O. SRI RAGHAVA PATALI
AGED ABOUT 54 YEARS
R/AT HOUSNO.270/5
"SANNIDHI",
NAGAKANNIKA TEMPLE STREET
DEREBAIL, KONCHADI
MANGALURU - 575 008                  ... PETITIONER

(BY SRI SHANKAR P. HEGDE, ADVOCATE)

AND

THE DIRECTORATE OF ENFORECEMENT
REPRESENTED BY ITS ASSISTANT DIRECTOR
GOVERNMENT OF INDIA
MINISTRY OF FINANCE
DEPARTMENT OF REVENUE
3RD FLOOR, B BLOCK, BMTC
SHANTHI NAGAR, KH ROAD
BENGALURU - 560 027
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REPRESNETED BY THE STATE PUBLIC PROSECUTOR
FOR DIRECTORATE OF ENFORCEMENT
HIGH COURT BUILDING
BENGALURU - 560 001
                                   ... RESPONDENT
(BY SRI MADHUKAR DESHPANDE, HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASH THE ORDER DATED
01.03.2023 PASSED BY THE III ADDL.DISTRICT AND
SESSIONS JUDGE, D.K., MANGALURU (COURT OF III
ADDL.DISTRICT AND SESSIONS AND SPL.COURT FOR
TRIAL OF CASES UNDER PMLA, D.K., MANGALURU) IN
SPL.CASE NO.128/2016 REJECTING THE APPLICATION
FILED UNDER SECTION 311 CR.P.C. DATED 16.02.2023,
PRODUCED UNDER ANNEXURE-A AND ALLOW THE
APPLICATION DATED 16.02.2023 FILED UNDER SEC 311
CR.PC AS PRAYED FOR.

IN CRIMINAL PETITION NO.2929 OF 2023

BETWEEN

SMT. SHARADA PATALI
W/O. SRI RAGHAVA PATALI
AGED ABOUT 54 YEARS
R/AT HOUSNO.270/5
"SANNIDHI",
NAGAKANNIKA TEMPLE STREET
DEREBAIL, KONCHADI
MANGALURU - 575 008                ... PETITIONER

(BY SRI HEGDE SHANKAR PURANDER , ADVOCATE)

AND

THE DIRECTORATE OF ENFORCEMENT
REPRESENTED BY ITS ASSISTANT DIRECTOR,
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GOVVERNMENT OF INDIA,
MINISTRY OF FINANCE,
DEPARTMENT OF REVENUE,
3RD FLOOR, B BLOCK, BMTC,
SHANTHI NAGAR, KH ROAD,
BENGALURU-560027.

(REPRESENTED BY SPECIAL PUBLIC PROSECUTOR FOR
DIRECTORATE OF ENFORCEMENT,
HIGH COURT BUILDING,
BENGALURU-560001.)                 ... RESPONDENT

(BY SRI MADHUKAR DESHPANDE, HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C PRAYING TO QUASH THE IMPUGNED
ORDER DATED 15.03.2023 PASSED BY THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALURU (SPECIAL COURT FOR TRIAL OF CASES
UNDER PMLA, D.K., MANGALURU) IN SPL.C.NO.128/2016
REJECTING THE APPLICATION FILED UNDER SECTION 311
OF CR.P.C. DATED 07.03.2023, WHEREIN THE STATUS OF
ORDER/CASE WHICH IS UPLOADED IN WEBSITE AND
DOWNLOADED      THROUGH    E-COURT    SERVICE  AND
PRODUCED UNDER ANNEXURE-A AND ALLOW THE
APPLICATION DATED 07.03.2023 FILED UNDER SECTION
311 OF CR.P.C. AS PRAYED FOR.

IN CRIMINAL PETITION NO.2931 OF 2023

BETWEEN

SMT. SHARADA PATALI
W/O. SRI RAGHAVA PATALI
AGED ABOUT 54 YEARS
R/AT HOUSNO.270/5
"SANNIDHI",
NAGAKANNIKA TEMPLE STREET
DEREBAIL,
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KONCHADI
MANGALURU - 575 008                 ... PETITIONER

(BY SRI HEGDE SHANKAR PURANDER , ADVOCATE)

AND

THE DIRECTORATE OF ENFORCEMENT
REPRESENTED BY ITS ASSISTANT DIRECTOR,
GOVERNMENT OF INDIA,
MINISTRY OF FINANCE,
DEPARTMENT OF REVENUE,
3RD FLOOR, B BLOCK, BMTC,
SHANTHI NAGAR, K H ROAD,
BENGALURU-560027.
(REPRESENTED BY SPECIAL PUBLIC PROSECUTOR FOR
DIRECTORATE OF ENFORCEMENT, HIGH COURT
BUILDING,
BENGALURU-560001)                  ... RESPONDENT

(BY SRI MADHUKAR DESHPANDE, HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 CR.P.C PRAYING TO QUASH THE ORDER DATED
15.03.2023 PASSED BY THE III ADDITIONAL DISTRICT
AND SESSIONS JUDGE, D.K., MANGALURU (COURT OF III
ADDL.DISTRICT AND SESSIONS AND SPL.COURT FOR
TRIAL OF CASES UNDER PMLA, D.K., MANGALURU) IN
SPL.CASE NO.128/2016 REJECTING THE APPLICATION
FILED UNDER SECTION 311 OF CR.P.C. DATED
10.03.2023, WHEREIN THE STATUS OF ORDER/CASE
WHICH IS UPLOADED IN WEBSITE AND DOWNLOADED
THROUGH E-COURT SERVICE AND PRODUCED UNDER
ANNEXURE A AND ALLOW THE APPLICATION DATED
10.03.2023 FILED UNDER SEC.311 OF CR.P.C. AS PRAYED
FOR.
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IN CRIMINAL PETITION NO.3101 OF 2023

BETWEEN

SMT.SHARADA PATALI
W/O SRI RAGHAVA PATALI
AGED ABOUT 54 YEARS
R/A HOUSE NO.270/5, SANNIDHI
NAGAKANNIKA TEMPLE STREET
DEREBAIL
KONCHADI
MANGALURU-575008                       ... PETITIONER

(BY SRI HEGDE SHANKAR PURANDER , ADVOCATE)

AND

THE DIRECTORATE OF ENFORCEMENT
REPRESENTED BY ITS ASSISTANT DIRECTOR,
GOVERNMENT OF INDIA
MINISTRY OF FINANCE
DEPT OF REVENUE
3RD FLOOR, B BLOCK BMTC
SHANTHI NAGAR
K H ROAD
BENGALURU-560027

REPRESENTED BY SPECIAL PUBLIC PROSECUTOR
FOR DIRECTORATE OF ENFORCEMENT
HIGH COURT BUILDING
BENGALURU-560001                  ... RESPONDENT

(BY SRI MADHUKAR DESHPANDE, HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 CR.P.C PRAYING TO QUASH THE ORDER DATED
01.03.2023, PASSED BY THE III ADDITIONAL DISTRICT
AND SESSIONS JUDGE, D.K., MANGALURU (COURT OF III
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND
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SPECIAL COURT FOR TRIAL OF CASES UNDER PMLA, D.K.,
MANGALURU) IN SPL.C.NO.128/2016 REJECTING THE
APPLICATION U/S 311 OF CR.P.C. DATED 09.02.2023,
PRODUCED UNDER ANNEXURE-A AND ALLOW THE
APPLICATION DATED 09.02.2023, U/S 311 OF CR.P.C. AS
PRAYED FOR.

     THESE CRIMINAL PETITIONS HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 18.4.2023, THIS DAY,
THE COURT MADE THE FOLLOWING:

                          ORDER

Crl.P.Nos.2927/2023, 2848/2023, 2931/2023 and

3101/2023, all these four petitions are filed by the

petitioner/accused No.2 under section 482 of Cr.P.C for

setting aside the order passed by the Special Judge,

Dakshina Kannada, Mangaluru for having rejected the

application filed by the petitioner under section 311 Cr.P.C.

in Special Case No.128/2016 dated 10.03.2023 for

summoning the defense witnesses and also recalling the

accused/DW3 and other witnesses for the purpose of

further evidence, as per the list of witnesses furnished by

the defence.

2. Heard the argument of learned counsel for the

petitioner and learned counsel for respondent counsel.

3. The learned counsel for petitioner has contended

that the petitioner is facing trial before the special court of

the proceeding initiated by the Enforcement Directorate

(ED) against the petitioner. After examination of the

prosecution witnesses the statement of the accused was

recorded, thereafter, the accused filed list of 15 witnesses

and he himself was examined as DW3 and examined total

16 witnesses and some of the witnesses mentioned in the

witness list were not preset, therefore it is necessary for

him to summon those witnesses to prove his defence.

4. The learned counsel for the petitioner has further

contended in Crl.P.No.2929/2023 that there were 14

witnesses examined by the court in the predicate offence,

where he has been convicted, therefore the deposition of

those witnesses required to be marked in this proceeding

which is permissible under section 80 of Evidence Act and

a document at Ex.D159 which is property folio marked in

the earlier case required to be marked in this case.

Therefore it is necessary for himself to recall DW3 for

marking those documents.

5. In Crl.P.No.3101/2023 he wants to recall the

DW1 and DW3 for further examination, but the same was

denied by the trial court, if it is not allowed, his case will

be prejudiced. Therefore, prayed for allowing all four

applications filed by him and reliefs sought in these four

petitions.

6. Per contra learned special counsel has objected

the petition and contended that the prosecution case was

closed on 12.1.2022 and the statement of the accused

under section 313 Cr.P.C was recorded on 22.3.2022, the

accused filed list of the witnesses on 1.4.2022 and

examined 6 witnesses from April to December 2022. He

was unable to keep up his witnesses present he has

already filed for recalling application for recalling two

witnesses which was allowed by the trial court on

7.1.2023, but they are not present before the court.

Therefore, case postponed for final argument, the

arguments of the prosecution was completed and during

the further hearing this petitioner filed these applications

which came to be dismissed on 1.3.2023, 10.3.2023, on

23.3.2023 and thereafter final arguments filed by way of

written submissions and the case is reserved for judgment.

At this stage, this petition came to be filed, hence prayed

for rejecting these petitions.

7. Having heard the arguments and perused the

records, which reveals it is an admitted fact, the petitioner

was accused before the trial court and after the

prosecution evidence, he has produced list of witnesses by

showing 15 names but he was able to examine only 6

witnesses and thereafter he has filed application for

recalling DW1 and DW3 but those witnesses were not

present. Though the trial court allowed the application on

the earlier occasion on 7.1.2023, therefore the question of

once again filing similar application recalling their own

witness does not arises. As the trial court already allowed

the application and the same was not availed by the

defense counsel and unable to keep them present.

8. That apart, the list of witnesses produced by the

accused he was able to keep only 6 witnesses and

remaining witnesses were not turned up. Therefore, the

question of once again summoning those witnesses does

not arise as the accused himself failed to keep. His own

witnesses before the court, therefore the question of

summoning those witnesses who are left in the list of

witnesses does not arises. The witness cannot be recalled

for the purpose of filling up the lacuna. The petitioner

himself examined as DW3 he wants to recall himself for

the purpose of marking the depositions of the 14 witnesses

who are deposed in the predicate offence, and he wants to

mark Ex.D159 the property folio. The petitioner accused

wants himself to be further examined for the purpose of

marking the property P.F.No.159 marked by the

Investigating Officer in the earlier case and 14 depositions

of the witnesses who were examined before the Court in

the earlier case. As per Section 80 of Evidence Act, those

documents are produced as record of evidence having a

presumptory value. Therefore, the trial court can allow the

petitioner to produce those depositions and P.F.No.159 in

Ex.D159 by the petitioner counsel along with the memo

that can be looked into by the trial Court while final

judgment.

10. When the witnesses are already summoned and

examined, if they are not present for the second time and

some witnesses were not at all kept present by the

accused, those witnesses cannot summoned at the fag end

of the trial, when the accused counsel already argued the

matter and filed written arguments and when the matter is

posted for judgment. Therefore, I am of the view all the

petitions are devoid of merits and liable to be dismissed.

Accordingly, all the petitions are dismissed.

However, the learned counsel for the petitioner can

produce the depositions and Ex.D159 along with the memo

before the trial court which can be looked into by the trial

court while appreciating the evidence on record and pass

the judgment in accordance with law.

Sd/-

JUDGE

AKV