Bombay High Court
M/S Dinesh Enterprises, Thr. Its ... vs Laxmichand S/O Lalchand Malpani on 24 February, 2023
Bench: G. A. Sanap
Judgment 1 20.apl.1311.2022 judg.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION NO.1311 OF 2022
M/s. Dinesh Enterprises,
Through its proprietor
Shri Dinesh S/o. Hemraj Lodaya,
Aged about 58 Yrs., Occ. : Business,
R/o. Badri Complex, Malkapur,
Tah. Malkapur, Distt. Buldhana. .... APPLICANT
// VERSUS //
Laxmichand S/o. Lalchand Malpani,
Aged about 60 Yrs., Occ. Business,
R/o. Deshpande Galli, Malkapur,
Tah. Malapur, Distt. Buldhana .... NON-APPLICANT
__________________________________________________________
Shri T. S. Deshpande, Advocate for the applicant
Ms Shilpa Tapdiya, Advocate for the non-applicant
__________________________________________________________
CORAM : G. A. SANAP, J.
DATED : 24th FEBRUARY, 2023
ORAL JUDGMENT :
1] Heard.
2] Rule. Rule made returnable forthwith. Heard finally with
the consent of learned advocates for the parties.
Judgment 2 20.apl.1311.2022 judg.odt
3] In this application, filed under Section 482 of the Code of
Criminal Procedure, challenge is to the correctness of the order dated
08.08.2022, passed by the learned Judicial Magistrate First Class,
Malkapur below application Exh. 64 in Summary Criminal Complaint
No. 324 of 2015. By the said order the learned Magistrate was pleased to
reject the application at Exh. 64 made for recalling the complainant for
further cross examination.
4] The case in question has been filed by the complainant
under Section 138 of the Negotiable Instruments Act, 1881. The
evidence of the complainant was over on 17.06.2017. The accused on
10.01.2022 made this application for recalling the complainant for
further cross examination. It is stated that certain relevant questions with
regard to the filing of the income tax returns by the complainant and
disclosure of the amount of transaction in the income tax returns has
remained to be asked to the complainant in his cross examination. It is
the case of the accused that in order to meet the ends of justice it is
necessary to grant him permission to cross examine the complainant on
this material aspect.
Judgment 3 20.apl.1311.2022 judg.odt
5] This application was opposed by the complainant. The
main contention of the complainant is that this application was nothing
but an attempt to delay the trial. The cross examination of the
complainant was over on 17.06.2017, i.e. five years prior to this
application. The matter is now posted for recording statement of the
accused under Section 313 of the Code of Criminal Procedure.
6] Learned Magistrate by reasoned order rejected this
application. The learned Magistrate has recorded in his order that the
accused has admitted receipt of the amount from the complainant. It is
further observed by the learned Magistrate that the sufficient opportunity
was granted to the accused to cross examine the complainant. Learned
Magistrate found that the grant of the application would result in a
prejudice to the complainant.
7] I have heard the learned Advocate for the parties. Perused
the record and proceedings.
8] It is seen on perusal of the record that this defence, which is
now sought to be put to the complainant in his cross examination by
recalling him, was not set out in the reply to the notice. It is to be noted
Judgment 4 20.apl.1311.2022 judg.odt
that after completion of cross examination and that too after change of
the Advocate this application was made. In the facts and circumstances,
it can be seen that this was nothing but an attempt to delay the trial.
Learned Magistrate was right in rejecting the application. The delay in
making the application was one of the reasons for rejection of the
application. In the facts and circumstances, I do not see any substance in
the application.
9] The application accordingly stands dismissed.
10] Rule is stands discharged.
( G. A. SANAP, J.)
Namrata
Signed By:NAMRATA YOGESH
DHARKAR
P. A.
High Court Nagpur
Signing Date:27.02.2023 17:39
