Bombay High Court
Shankar vs The State Of Maharashtra on 23 October, 2012
Bench: Shrihari P. Davare
(1) Cri. W.P. No. 836 / 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal Writ Petition No. 836 of 2012
Shankar s/o. Nathuji Khandare,
Age : 55 years,
Occupation : Business,
R/o. 145/3rd Floor,
Great Western Building,
M.C.C.I. Lane, Kala Goda, .. Petitioner
Fort, Mumbai - 400 023. (Original accused)
versus
1. The State of Maharashtra,
Through Investigation Officer,
Kranti Chowk Police Station,
Aurangabad.
2. APT Packaging Limited,
Gut No.72, Village Pharola,
Taluka : Paithan,
District : Aurangabad,
Through its Authorized Employee
Sachin Dubile,
Age : 24 years,
Occupation : Service, .. Respondents
R/o. 301, Shahuji Arcade, (No.2 - Original
N-7, Aurangabad. complainant)
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(2) Cri. W.P. No. 836 / 2012
Mr. S.A. Ambad, Advocate, for the petitioner.
Mr. B.J. Sonwane, Additional Public Prosecutor, for
respondent no.1.
Mr. S.P. Golegaonkar, Advocate, for respondent no.2.
........................
CORAM : SHRIHARI P. DAVARE, J.
DATE : 23RD OCTOBER 2012
ORAL JUDGMENT :
1. Heard learned respective Counsel for the parties.
2. Rule. Rule made returnable forthwith. With the consent of
learned Counsel for the parties, taken up for final hearing.
3. By the present petition filed by the petitioner (original
accused) under Article 227 of the Constitution of India, the petitioner has
prayed that the order dated 24th July 2012, passed by the learned Judicial
Magistrate (F.C.), Court No.1, Aurangabad, below Exhibit 47/D, in S.C.C.
No. 5305/2009, be quashed and set aside.
4. Parties are hereinafter referred to as per their original status
i.e. accused and complainant.
5. The factual matrix of the case is as under :
(3) Cri. W.P. No. 836 / 2012
(a) The respondent no.2 i.e. original complainant filed S.C.C. No.
5305/2009 against the petitioner herein i.e. original accused for the offence
punishable under Section 138 of Negotiable Instruments Act, 1881, and
accordingly, petitioner herein is the original accused, and respondent no.2
is the original complainant therein. According to respondent no.2 i.e.
original complainant, he has supplied the articles to the accused Company,
and the said goods were delivered on 9-2-2009. The accused / petitioner
issued a cheque bearing No. 252955 dated 16th March 2009, for Rs.
2,81,185/- against the outstanding amount of the said supplied goods,
drawn on Axis Bank Limited, New Marine Lines, Mumbai.
respondent no.2 presented the said cheque for encashment purpose.
The
However, the said cheque was dishonoured and returned unpaid on 22nd
July 2009 by the banker with the bank return memo bearing endorsement
"funds insufficient". Hence, respondent no.2 issued statutory notice to the
petitioner, through Advocate, on 4-8-2009. The accused replied the said
notice on 14-8-2009 and denied the liability of the payment of cheque
amount to the complainant. Hence, the complainant filed complaint
against the accused before learned Judicial Magistrate (F.C.), Court No.1,
Aurangabad, under S.C.C. No. 5305/2009, under Section 138 of
Negotiable Instruments Act. Accordingly, learned Judicial Magistrate
(F.C.) issued process against the accused. The accused appeared in the
said case and his plea was recorded and he pleaded not guilty. Thereafter,
the respondent no.2 herein i.e. complainant filed his affidavit of
examination in chief on 11-2-2010. Thereafter, on 27-2-2012, the said
witness was cross examined by the Advocate for the accused partly, and
the matter was adjourned for filing of documents and for further cross
(4) Cri. W.P. No. 836 / 2012
examination on 12th March 2012, 10th April 2012 and 4th May 2012.
(b) On 4th May 2012, according to the accused, the complainant was
not present before the court, and therefore, cross examination could not
take place in the morning session. According to the accused, in the
afternoon session, Advocate for the accused was not feeling well due to
sun stroke, and therefore, he preferred application for adjournment below
Exhibit 43/D. The complainant filed his reply to the said application and
opposed the said application. Accordingly, the said application was
rejected by the learned trial court observing that the complainant was
present since morning before the court and cross examination of the
complainant was already conducted partly and there was no sufficient
ground for adjourning the matter. In view of rejection of the said
application Exhibit 43/D, learned trial court posted the matter for
recording statement of the accused under Section 313 of the Code of
Criminal Procedure. However, on 3rd July 2012, accused preferred
another application Exhibit 47, and thereby requested to set aside the 'no
cross' order and sought permission for further cross examination. The
complainant filed his say and opposed the said application, and requested
for issuance of warrant against the accused since he was absent before the
court for recording of statement under Section 313 of the Code of Criminal
Procedure. Accordingly, considering contents of the said application and
the reply, learned trial court passed an order on 24th July 2012, below
application Exhibit 47, and thereby rejected the said application, and the
said order is impugned in the present petition.
6. The respondent no.2 has filed affidavit in reply and opposed
(5) Cri. W.P. No. 836 / 2012
the present petition vehemently and put forth the factual aspects stating
that the respondent no.2 / complainant filed affidavit of examination in
chief on 11-2-2010, and the matter was posted for cross examination of the
accused on 27th February 2012, and accused sought adjournment for filing
documents. Thereafter, the matter was adjoured from time to time
26-2-2012, 12-3-2012, 10-4-2012, and thereafter fixed on 4-5-2012. On
4-5-2012, the complainant and his Advocate were present in the court hall
in the morning session, but Counsel for the accused was absent, and
therefore, learned trial court kept the matter in the afternoon, since usually
Advocate for the accused attended the matter in the afternoon. Thereafter,
complainant and his Advocate remained present in the afternoon session,
but Advocate for the accused sent adjournment application through
someone contending that he was all of sudden not feeling well. Hence, the
complainant filed application before learned trial court, stating that he
came from Pune for cross examination and it was not possible for him to
attend the court, as he has joined another Company, and also stated that the
matter was lingering from many days and accused was playing tactics of
delay to protract the matter unnecessarily. Accordingly, learned trial court
considering the reply filed by the complainant, rejected the application
preferred by the accused. Thereafter, accused filed application on 3rd July
2012 for setting aside 'no cross' order and sought opportunity for cross
examination. Learned trial court set aside the said order subject to costs
and permitted the accused to take cross examination of the complainant on
24th July 2012. However, on 24th July 2012 also, though time was
granted for cross examination, Advocate for the accused failed to conduct
cross examination and sought adjournment without giving any substantial
reason. Hence, learned trial court rejected the said application for
(6) Cri. W.P. No. 836 / 2012
adjournment and kept the matter for recording statement of the accused.
However, Advocate for the accused had given time to time assurance to
the learned trial court that he would arrange for presence of the accused
before the court, but the accused remained absent and prolonged the matter
without any reason. Hence, on the request of Advocate for the
complainant, learned trial court issued bailable warrant against the accused
and notice to the surety, and thereafter matter was kept on 7-9-2012.
However, learned trial court granted bail and cancelled the warrant and
matter was kept on 21-9-2012. However, accused remained absent but his
Advocate was present, and therefore, matter was posted on 3rd October
2012 for recording statement of the accused under Section 313 of the Code
of Criminal Procedure. On 3-10-2012, Advocate for the accused tendered
the order passed by this Court granting stay in the said matter. Thus,
according to the complainant, the accused has been playing delaying
tactics and protracting the matter with ulterior motive, and hence, it is
contended that there is no substance in the present petition, and the same is
devoid of any merits, and therefore, same be dismissed.
7. Learned Counsel for the petitioner canvassed that not
allowing the accused to conduct further cross examination of the
complainant amounts denial of fair trial to the accused. He further
submitted that the accused is ready and willing to conduct further cross
examination of the complainant on day-to-day basis. He further submitted
that the accused cannot be convicted without giving opportunity to cross
examine the complainant further. He further canvassed that fair trial
includes fair opportunity. Moreover, cross examination is a valuable right
and denial of such right would mean denial of fair trial. According to him,
(7) Cri. W.P. No. 836 / 2012
rejection of the application results in violation of principles of natural
justice. Hence, he urged that opportunity be given to the accused to
conduct cross examination / further cross examination of the complainant
by setting aside the impugned order.
8. Learned Counsel for respondent no.2 countered the said
arguments and submitted that sufficient opportunity was given to the
accused to conduct cross examination / further cross examination of the
complainant, but the accused has not availed the said opportunities and
adopted the tactics to protract the matter with ulterior motive. He also
submitted that 'no cross' order was set aside by the learned trial court on
payment of costs, but thereafter also the accused has not conducted further
cross examination of the complainant. Thus, it is pointed out by the
learned Counsel for respondent no.2 that due and sufficient opportunity
was given to the accused to conduct cross examination / further cross
examination of the complainant, and principles of natural justice were duly
observed by the learned trial court. However, it is submitted that the
accused has taken disadvantage of the sufficient opportunity given to him
and tried to protract the matter on some or other pretext, and therefore,
learned trial court has rightly passed the order on 24th July 2012 below
Exhibit 47, observing that though opportunities were given to the accused
to further cross examine the complainant, the accused remained absent,
and even complainant has come all the way from Pune, and there was no
sufficient ground for not conducting cross examination of the complainant
on that day, and accordingly, rejected the said application preferred by the
accused rightly, and no interference is called for in the present petition.
Thus, learned Counsel for respondent no.2 urged that the present petition
(8) Cri. W.P. No. 836 / 2012
be dismissed. He relied upon judicial pronouncement of Delhi High
Court, in the case of Bobby Kapoor Vs. Citi Finance Consumer Finance India
Ltd. and others, reported at 2012 (2) Bankers' Journal 376, wherein it is
observed thus :
" The Court can only give opportunity to cross-
examine the witness, the Court cannot force an
advocate to conduct cross-examination if he is not
willing and the only option available with the Court
under such circumstances is to close the cross-
examination. The trial of a case cannot go as per the
whim and fancies of either the accused or his
Counsel. A summary trial has to be speedier and
must end as quickly as possible. No date of hearing
can be allowed to be wasted because of adamant
attitude of the Counsel. The Trial Court therefore
rightly closed the cross-examination of the witness. "
9. I have perused the present petition, its annexures, application
Exhibit 43/D dated 4th May 2012, preferred by the accused, reply by the
respondent no.2 thereon, and the order passed by the learned trial court
thereon. Moreover, I have also perused application Exhibit 47 dated 3rd
July 2012, preferred by the accused, and the reply filed by respondent no.2
thereto dated 3rd July 2012, and the impugned order passed by the learned
trial court on 24th July 2012, and heard rival submissions advanced by the
learned Counsel for the parties anxiously, and also perused the judicial
pronouncement cited by the learned Counsel for respondent no.2 carefully.
10. It is the matter of record that sufficient opportunities were
given to the accused to conduct cross examination and even further cross
(9) Cri. W.P. No. 836 / 2012
examination of the complainant, but still the accused has not availed the
said opportunities. Moreover, it also appears that the learned trial court
has set aside the 'no cross' order on payment of costs and matter was
posted for further cross examination of the complainant on 24th July 2012.
However, it appears that on 24th July 2012 also, though time was granted
for further cross examination of the complainant, Advocate for the accused
failed to conduct the cross examination and again sought adjournment. It
appears from the impugned order dated 24th July 2012, that the
complainant was present before the court, who all the way had come from
Pune. Hence, learned trial court rejected the application preferred by the
accused for adjournment, observing that there was no sufficient ground for
not conducting further cross examination of the complainant and posted
the matter for recording statement of the accused under Section 313 of the
Code of Criminal Procedure. Thus, it is amply clear that sufficient
opportunities were given to the accused by the learned trial court to
conduct further cross examination of the complainant.
11. Besides, admittedly, present case is a complaint filed under
Section 138 of Negotiable Instruments Act, which is a summary trial and it
cannot be overlooked that it shall be decided speedily. However,
simultaneously, it also cannot be ignored that there should be a fair trial
and right to cross examination should not be denied to the accused since
the accused can avail opportunity of putting his defence through such
cross examination. Hence, principles of natural justice require that due
opportunity be given to the accused to conduct further cross examination
of the complainant, but it shall be certainly on payment of reasonable costs
by the accused to the complainant and parties are required to be directed to
(10) Cri. W.P. No. 836 / 2012
remain present before learned trial court on a specified date, by setting
aside the impugned order and allowing the present petition, which would
meet the ends of justice.
12. In so far as judicial pronouncement cited by the learned
Counsel for respondent no.2, in that case, it appears that copies of certain
documents were not allegedly supplied to the Advocate, and therefore, he
persisted that he would not cross examine the complainant's witness as
loan agreement was not supplied to him, and therefore, learned Judge
observed in the said case that the trial cannot go as per the whim and
fancies of either the accused or his Counsel, and summary trial must be
speedier and no date of hearing can be allowed to be wasted because of
adamant attitude of the Counsel, and consequently, dismissed the said
petition. However, so is not the position in the instant case, and hence,
facts and circumstances in the said case and facts and circumstances in the
present case differ from each other. Ultimately, court has to see that no
injustice is caused to either of the parties and due and fair opportunity be
given to the complainant, as well as, to the accused, and therefore, present
petition deserves to be allowed with the above referred directions.
13. In the result, present petition is allowed in terms of prayer
clause "B" thereof, and the impugned order dated 24th July 2012, passed
by the learned Judicial Magistrate (F.C.), Court No.1, Aurangabad, below
Exhibit 47/D in S.C.C. No. 5305/2009, stands quashed and set aside, and
the complainant and original accused and their respective Advocates shall
remain present before learned trial court at 11.00 a.m. on 1st December
2012, and the Advocate for the accused shall conduct further cross
(11) Cri. W.P. No. 836 / 2012
examination of the complainant on the said date, without any excuse and if
the said cross examination is not completed on the said date, it shall be
continued on 3rd December 2012, and thereafter on day-to-day basis, if
required, subject to payment of costs by the accused to the complainant,
which is quantified at Rs. 2,000/- [Rupees two thousand only], to be paid
on or before next date.
14. Rule is made absolute in the aforesaid terms, and the present
petition is disposed of accordingly.
ig (SHRIHARI P. DAVARE)
JUDGE
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bgp/criwp836
