Bombay High Court
Dineshkumar S/O Hanumanprasad ... vs Dhiraj Sureshrao Pawar on 8 June, 2016
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION No.834 OF 2015
Dineshkumar s/o. Hanumanprasad Tiwari,
Aged about 55 years,
Occupation : Cultivation & Business,
R/o. Gandhi Chauk, Pulgaon,
Tahsil Deoli, District Wardha. : PETITIONER
...VERSUS...
Dhiraj Sureshrao Pawar,
Aged about 38 years,
Occupation : Business,
R/o. Hindustan Colony,Wardha Road,
Gunjkhjeda (Pulgaon),
Tah. Deoli, District Wardha. : RESPONDENT
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Shri R.R. Vyas, Advocate for the Petitioner.
None for the Respondent.
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CORAM : S.B. SHUKRE, J.
th
DATE : 8
JUNE, 2016.
ORAL JUDGMENT :
1. The notice was issued on 30 November, 2015 for final
th
disposal of this case. This notice has been served and received by
the respondent, but he has chosen not to appear before this Court.
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In view of the notice issued and the stage at which the criminal case
is pending, this revision application is now been disposed of finally.
2. By the order impugned in this case, learned Judicial
Magistrate First Class, Court No.2, Pulgaon has allowed an
application filed by the respondent for the reasons not stated
anywhere in the application. It appears that the learned Magistrate
has invented these reasons for the respondent, though not in a
manner consistent with the record of the case as well as law laid
down by the Hon'ble Apex Court in the case of Indian Bank
Association and others vs. Union of India and others, reported in
(2014) 5 SCC 590, relied upon by the learned counsel for the
revision applicant. The record shows, as seen from the copy of the
roznama of the case, that sufficient opportunity was given to the
respondent to cross-examine the witness of the revision applicant,
but, the respondent could not avail of the opportunity. The
respondent should have applied for recalling the witness for cross-
examination taking recourse to Section 145(2) of the Negotiable
Instruments Act the day on which he appeared before the trial
Court and furnished bail bond. The law settled by the Hon'ble Apex
Court in this regard is stated in paragraph 23.4 of the Indian Bank
Association and others, which reads thus :
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"The court should direct the accused,
when he appears to furnish a bail bond, to ensure
his appearance during trial and ask him to take
notice under Section 251 CrPC to enable him to
enter his plea of defence and fix the case for defence
evidence, unless an application is made by the
accused under Section 145(2) for recalling a
witness for cross-examination."
3. The law is clear and it required the learned Magistrate to
give his reasons as to why, despite failure of the respondent to take
recourse to Section 145(2) of the Negotiable Instruments Act, did
he think fit to allow the application filed by the respondent for
recalling of the complainant's witness for cross-examination. This
has not been done by the learned Magistrate. That apart, as said
earlier, the application filed by the respondent never disclosed any
reason as to why the respondent did not or could not avail of the
opportunity so liberally given to him for cross-examining the
complainant's witness. The impugned order is , therefore, perverse
and arbitrary and goes against established principles of law. It
cannot be allowed to be sustained.
4. The criminal writ petition is allowed.
5. The impugned order dated 7.10.2015 passed by the
Judicial Magistrate, First Class, Court No.2, Pulgaon, is hereby
quashed and set aside.
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6. The application filed by the respondent for recalling the
witnesses of the complainant for their cross-examination dated 2 nd
March, 2015 is rejected.
JUDGE
okMksns
