40.apl.388.2023.judge.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO.388 OF 2023
Raju Natthuji Badhe,
Aged 49 Yrs., Occ.: Business,
Prop. Anuja Seeds
R/o. 3rd Floor, Shankambari Complex,
Near Datta Mandir, Behind Jasnagara
Hotel, Ramdaspeth, Taluka and
District Akola .... APPLICANT
// V E R S U S //
Shyam Ajay Mohta,
Aged : 37 Yrs., Occ.: Advocate,
Karta of Shyam Ajay Mohta H.U.F.
Through his Power of Attorney Holder,
Ajay Vitthaldasji Mohta,
Aged about 63 Yrs., Occ. Advocate,
R/o. Giriraj, Geeta Nagar, Near Bye-
pass Road, Akola, Taluka and District
Akola. ... NON-APPLICANT
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Mr. S. V. Sirpurkar, Advocate for the applicant
Mr R. M. Sharma, Advocate for the non-applicant
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CORAM : G. A. SANAP, J.
DATE : 03/04/2023 ORAL JUDGMENT :
1. Heard.
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40.apl.388.2023.judge.odt 2
2. Rule. Rule made returnable forthwith. Heard finally with the consent of learned Advocates for the parties.
3. In this application, made under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Cr.P.C."), the challenge is to the order dated 01.03.2023 passed below Exhs. 71 and 73 in Summary Criminal Case No. 812 of 2020.
4. The facts are as follows:
The applicant is the accused and the respondent is the complainant. In this judgment, they are referred by their nomenclature in the complaint. The accused is facing prosecution for commission of offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the N. I. Act."). The complainant adduced his evidence. After recording the evidence of the complainant, the case was fixed for recording statement of accused under Section 313 of the Cr.P.C. The statement of the accused was recorded on 20.08.2022. Thereafter, ::: Uploaded on - 06/04/2023 ::: Downloaded on - 07/04/2023 08:24:28 :::
40.apl.388.2023.judge.odt 3 the matter was posted for defence evidence. The accused did not adduce defence evidence and therefore, his evidence was treated as closed on 04.11.2022.
5. The accused made an application at Exh. 71 under Section 311 of the Cr.P.C. for recalling PW-1 for further cross examination. Similarly, on the same date he made an application at Exh. 73 seeking permission to adduce defence evidence by setting aside the order dated 04.11.2022. Learned Magistrate by an order dated 01.03.2023 rejected the application at Exh. 71. The application at Exh. 73 was also rejected subject to cost of Rs.2000/-. The accused has challenged these orders in this application.
6. I have heard learned Advocates for the parties. Perused the record and proceedings.
7. Learned Advocate for the accused submitted that the earlier advocate of the accused failed to cross examine the witness PW-1 on all the material points. Learned Advocate ::: Uploaded on - 06/04/2023 ::: Downloaded on - 07/04/2023 08:24:28 :::
40.apl.388.2023.judge.odt 4 submitted that learned Magistrate has not considered the ground stated in the application and rejected the said application. Learned Advocate submitted that it has caused injustice to the accused. Learned Advocate further submitted that in order to meet the ends of justice, it is necessary to grant sufficient opportunity to the accused first to recall the PW-1 for further cross examination and then to allow him to lead evidence in defence. Learned Advocate submitted that approach of the trial Court is not consistent with the law.
8. As against this, learned Advocate for the complainant submitted that the accused throughout this trial has delayed the hearing of the case. Learned Advocate submitted that learned Magistrate has been kind enough to grant sufficient opportunity and indulgence to the accused to exercise his legal rights. Learned Advocate further submitted that the learned Magistrate on number of occasions in his order recorded that deliberate attempt has been made by the accused to delay the trial. Learned Advocate further submitted that the accused has no defence ::: Uploaded on - 06/04/2023 ::: Downloaded on - 07/04/2023 08:24:28 :::
40.apl.388.2023.judge.odt 5 in the case and therefore, in order to delay the disposal of the case repetitively he has been making the applications. Learned Advocate submitted that no interference is warranted in the order passed by the learned Magistrate.
9. It is to be noted that before granting an application under Section 311 of the Cr.P.C., the Court must be satisfied that recall of the witness for further cross examination is necessary for just decision of the case. It is further pertinent to note that the witness cannot be recalled in a routine manner and as a matter of course. It is further pertinent to note that for recall of important witness for examination, the Court can suo moto exercise this power. However, in any case, the Court must record a satisfaction that either the recall of already examined witness or examination of fresh witness is necessary for the just decision of the case.
10. In this case, the trial Court granted sufficient opportunity to the accused to cross examine PW-1 and PW-2. The copy of the roznama has been placed on record with the reply. The ::: Uploaded on - 06/04/2023 ::: Downloaded on - 07/04/2023 08:24:28 :::
40.apl.388.2023.judge.odt 6 facts recorded in the roznama would show beyond doubt that throughout the trial and particularly after recording the evidence of PW-1, the accused made repetitive applications seeking adjournment. Perusal of the order would show that on number of occasions the learned Magistrate was forced to issue non bailable warrant against the accused. After recording statement of the accused under Section 313 of the Cr.P.C., the matter was posted for defence evidence. The accused did not adduce defence evidence. Learned Magistrate, therefore, by his order dated 04.11.2022 treated the defence evidence as closed. The accused, after 04.11.2022, did not take steps. Thereafter, the matter was posted for argument. The accused made the applications at Exh. 71 on 21.02.2023 and Exh. 73 on 01.03.2023. Both these applications were rejected on 01.03.2023.
11. The question is whether any ground was stated in the applications at Exh. 71 and 73 to justify the prayer made in those applications. The accused, as can be seen from the record, did not act promptly to exercise his right provided under the law. He ::: Uploaded on - 06/04/2023 ::: Downloaded on - 07/04/2023 08:24:28 :::
40.apl.388.2023.judge.odt 7 failed to adduce his evidence in defence despite granting time. He failed to make use of the opportunity. From 04.11.2022, he waited for two months to make the application for recalling of witness. The ground stated in the application for recalling of the witness is that the previous Advocate of the accused failed to cross examine the witness on all the material points. I have perused the cross examination. Perusal of the cross examination would show that it has been exhaustive cross examination on all the points. The accused was supposed to make such an application at the earliest and in any case before recording his statement under Section 313 of the Cr.P.C. Similarly, despite granting time by the Court he did not adduce evidence in defence. This fact, in my view, would reflect upon the malafides of the accused.
12. It is observed that in such proceedings no stone is left unturned by the accused to see that such matter is delayed for one reason or the other. In maximum such matters, at the fag end of the proceeding, either for recalling the complainant for further cross examination or for such other innocuous relief, the ::: Uploaded on - 06/04/2023 ::: Downloaded on - 07/04/2023 08:24:28 :::
40.apl.388.2023.judge.odt 8 applications are made and the matters are delayed. In my view, in a genuine cases the application made under Section 311 of the Cr.P.C. has to be considered and granted. But, if it is found that the case in question is not genuine and the application is made only for the purpose of causing delay, then such an attempt has to be nip in the bud. In this case, in my view, the attempt made by the accused is nothing but a delaying tactics. Therefore, I do not see any reason to interfere with the order passed by the learned Magistrate. The order on consideration from all angles does not indicate that it is illegal order. As such, the application stands dismissed.
13. The criminal application stands disposed of, accordingly.
14. Rule stands discharged. No costs.
(G. A. SANAP, J.) Namrata ::: Uploaded on - 06/04/2023 ::: Downloaded on - 07/04/2023 08:24:28 :::