Bombay High Court
Abdul Wasim S/O. Abdul Salim vs Mahboob Miya Khan S/O. Miya Khan on 18 February, 2021
Bench: Mangesh S. Patil
(1) 940-criwp1983-19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1983 OF 2019
Abdul Wasim S/o Abdul Salim
Age 50 years, Occu:Business,
Proprietor of Gujrath Freat Carier
R/o Kagjipura, Taluka Khultabad
District Aurangabad .. PETITIONER
[ORIGINAL ACCUSED]
Versus
Mahboob Miya Khan S/o Miya Khan
Age 50 years, Occu : Business,
R/o Kagjipura, Taluka Khultabad
District Aurangabad
At present House No.4-18-57,
Lane No.3, Smashan Maroti Road
Kailash Nagar, Aurangabad. .. RESPONDENT
[ORIGINAL COMPLAINANT]
...
Shri S.S.Bora, Advocate for petitioner
Shri S.A.Gaikwad,Advocate for respondent
...
CORAM : MANGESH S. PATIL, J.
DATE : 18.02.2021
ORAL JUDGMENT :-
Heard.
2] Rule. The rule is made returnable forthwith. With consent of both
sides, matter is heard finally at the stage of admission.
(2) 940-criwp1983-19
3] The petitioner is the accused in a case going on before the learned
J.M.F.C. under Section 138 of the Negotiable Instruments Act. By the
impugned order the learned Magistrate rejected his application (Exh.58)
seeking a witness to be called in defence.
4] The learned advocate for the petitioner submits that a right of the
petitioner is being thwarted. An innocuous request to call a witness has been
turned down. It would cause serious prejudice to him. The learned advocate
would further point out that from time to time the matter was adjourned
because of genuine reasons. His learned advocate because of some
bereavement in the family could not turn up when the witness was present.
The petitioner cannot be made to suffer because of such personal difficulty of
his advocate. The learned Magistrate ignored all these fact situations and has
rejected the application illegally.
5] The learned advocate for the respondent complainant takes me through
the record and points out as to how at every stage the petitioner has been
remiss in prosecuting the matter before the trial Court. He would point out
that the petitioner was loath in conducting cross examination of the
respondent complainant and order was passed that there would be no cross
examination of the complainant on his behalf. An opportunity was thereafter
extended to him to cross examine the witness. After the evidence of the
respondent complainant was concluded the petitioner took time to lead
evidence in defence. The defence witness was present on 3 occasions but he
failed to conduct his examination.
(3) 940-criwp1983-19
6] The learned advocate would further point out that even the petitioner is
not punctual and bona fide in making the request which he is now making by
way of this Petition. Simultaneously, while filing this Writ Petition, the
petitioner also applied for transfer of the trial to a different Magistrate. His
request was rejected by learned Sessions Judge. He conveniently omitted to
disclose this state of affair in this petition and considering his such conduct,
the Writ Petition be dismissed.
7] I have carefully gone through the papers. Obviously the conduct of the
petitioner speaks in volumes about his reluctance in going ahead with the
trial. It does appear that he has also indulged in hide and seek in as much as
simultaneously with this Writ Petition he applied even for transfer of the trial
to a different Magistrate, in all probability being aggrieved and dissatisfied by
the self same order which is under challenge in this Writ Petition.
8] Be that as it may, the date on which the adjournment was sought, but
was refused, his learned advocate was unable to remain present because of
bereavement in his family and subsequent rites to be performed. It is trite that
a party cannot be allowed to suffer because of an error or lapse on the part of
Court official.
9] Considering the fact that it is a criminal trial, where the petitioner is an
accused and it is his right to defend himself in appropriate manner coupled
with his conduct discussed hereinabove, the interest of justice would be met
by allowing him to call the witness by imposing certain costs. The learned
Magistrate has shut the doors of justice abruptly. In my considered view, it
would be appropriate to allow the Writ Petition by imposing heavy costs to the
(4) 940-criwp1983-19
petitioner putting him to certain conditions to enable the trial Court to
conclude it within stipulated time.
10] The Writ Petition is allowed. The impugned order is quashed and set
aside subject to the petitioner paying costs of Rs.10,000/- to the respondent to
be deposited in the trial Court within 2 weeks. On such costs being deposited,
the petitioner's application shall stand allowed. However, it is made clear that
the petitioner shall cooperate the trial Court in conducting the trial and shall
not seek any adjournment.
11] The Rule is accordingly made absolute.
[MANGESH S. PATIL, J.]
umg/
