Bombay High Court
Ravishankar S/O Chandrabhan ... vs Narayan S/O Manohar Patki on 24 November, 2022
Bench: G. A. Sanap
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.659 OF 2022
Ravishankar s/o Chandrabhan Gupta
Aged about 50 years, Occ: Business,
R/o Near Sapna Cloth Market,
... PETITIONER
Rameshwari Sq. Nagpur
(Orig. Accused)
---VERSUS---
Narayan s/o Manohar Patki
Aged about 69 years, Occ: Retired,
R/o 102, Bhide Road, Sitabuldi, Nagpur. ...RESPONDENT
(Orig. Complainant)
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Shri Y.R. Sonkusare, Advocate for petitioner.
Shri N.R. Bhishikar, Advocate for respondent.
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CORAM : G.A. SANAP, J.
DATED : NOVEMBER 24, 2022.
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. Heard finally at
the admission stage with the consent of learned advocates for the
parties.
2. The petitioner is an accused in Summary Criminal Case
No.10006/2017, which is filed under Section 138 of the Negotiable
Instruments Act. The complainant adduced his evidence. The
petitioner-accused was absent and therefore the learned Magistrate
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was constrained to pass an order as 'no cross' on 21.02.2022. After
this, the matter proceeded further. The statement of the petitioner-
accused under Section 313 of the Code of Criminal Procedure came
to be recorded. The petitioner made an application for setting aside
the order of 'no cross' and permission to cross-examine the
complainant. Learned Magistrate on 21.02.2022 rejected the said
application. This order is impugned in this petition.
3. I have heard learned advocate for the petitioner and
learned advocate for the respondent. Perused the record and
proceedings.
4. The record and proceedings clearly indicate that there was
serious lapse on the part of the petitioner. The present situation has
been invited by him due to serious lapses committed by him. The
learned advocate submitted that if the petitioner is not granted an
opportunity to challenge the evidence by conducting cross-
examination, he would be visited with serious consequences, for the
proved offence. The learned advocate submitted that the interest of
justice would be met if the petitioner is allowed to cross-examine.
5. Learned advocate for the respondent submitted that this is
the second time the cross of the petitioner was treated as closed in
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his absence. Learned advocate submitted that on the first occasion
learned Magistrate was pleased to set aside the no cross order. The
learned advocate further submitted that the serious lapses
committed by the petitioner and his conduct do not justify the
relief.
6. On going through the record, I am satisfied that there are
serious lapses on the part of the petitioner. It is pointed out that now
the statement of the petitioner under Section 313 has been recorded
and the complaint is adjourned for recording the defence evidence
of the petitioner-accused. It is to be noted that if the evidence
remained unchallenged and uncontroverted then in that event in
case of the proof of the offence the petitioner can be visited with the
order of substantive sentence. In my view, in such a matter the
pragmatic view is required to be taken. The view which subserves
the cause of justice in all respect needs to be adopted. It is true that
there was a mistake on the part of the petitioner however due to this
mistake the order rejecting his prayer to allow him to cross-examine
the witness would be disproportionate to the mistake and lapses
committed by him. In my view, the interest of justice would be met
if he is granted an opportunity to cross-examine the respondent
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subject to moderate costs. In view of this position, I pass the
following order:
ORDER
i. The order rejecting the application for grant of the
permission to cross-examine dated 21.02.2022 is set aside.
ii. The application made by the petitioner-accused seeking
permission to cross-examine the witness is granted. However, in
the facts and circumstances, the petitioner-accused shall pay the
costs of ₹15,000/- to the respondent-complainant.
iii. The petitioner-accused shall appear before the learned
Magistrate on 30.11.2022 and pay the costs of ₹15,000/- to the
respondent/complainant. If there is a failure on the part of the
petitioner to pay the costs of ₹15,000/- on 30.11.2022, the
earlier order dated 21.02.2022 passed by the learned Magistrate
rejecting the application shall stand restored.
iv. The petitioner-accused and respondent-complainant shall
remain present before the learned Magistrate on 30.11.2022 at
11:00 am. If costs is paid on 30.11.2022 by the petitioner-
accused then it shall be given directly before the Court to the
respondent-complainant.
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v. It is made clear that the petitioner-accused shall conduct
the cross-examination in one session on 01.12.2022.
vi. The petition stands disposed of with above terms.
JUDGE
Wagh
