Mehboob H. Khatib v. Husen Mahammad Bhaldar & Ors.

----- Mr.Shrishall Sakhare for Petitioner Mr.A.S. Shitole -APP for State. ----- CORAM: V.M. KANADE J. DATED: 23RD JUNE, 2010 P.C.

Heard the learned Counsel appearing on behalf of the Petitioner.

By this petition, the Petitioner is challenging an order passed by the Trial Court rejecting his application for recalling the Complainant for cross examination. This order was confirmed by the Sessions Court in Criminal Revision Application No. 59 of 2010.

Brief facts of the present case are that the Complaint was filed by the Respondent under section 1 138 of the Negotiable Instruments Act. After the summons was served, the Respondent No.1 filed his affidavit of examination in chief on 6.6.2009. The matter, thereafter, was kept for cross examination of the complainant on 22.6.2009. On the next date, however, the Petitioner did not remain present and, therefore, the for of “No Cross” was passed. The Complainant closed his evidence and the matter was adjourned for recording the statement of accused under section 313 of the Cr.P.C. and it was kept on

13.7.2009. However, the Petitioner had remained absent on the next date and, therefore, non-bailable warrant was issued and it was made returnable on

5.10.2009. On the next date the warrant was received unexecuted and the matter was again kept on 13.11.2009 and 2.12.2009 for recording the statement of the accused. Since on both the dates, the accused did not appear and on 2.12.2009, the complainant again moved an application for issuance of non-bailable warrant. The Petitioner/Accused moved an application for 1 cancellation of non-bailable warrant on 21.12.2009 and the Trial Court was pleased to cancel the non- bailable warrant and the matter was kept on 4.1.2010.

On 4.1.2010, the accused did not remain present for the purpose of recording his statement under section 313 of the Cr.P.C. and again on that date, non-bailable warrant was issued. After the said order was passed, after the Court working hours were over, he again moved an application for cancellation of bail and the matter was cancelled and the matter was kept on 15.1.2010. However, on that date, the accused appeared at 1.00 p.m. The Trial Court directed his advocate that the matter was kept for recording his statement and accordingly, dictated the questions by the Court to the Stenographer of the Court and, therefore, the matter was kept at 3.00 p.m. in the second session. The Accused, however, filed an application for recalling the complainant for cross examination. 1

The Trial Court has observed that sufficient reasonable time was given to the accused to cross- examine the Complainant. On each and every date, the accused remained absent and, therefore, non-bailable warrants have to be issued.

Though application for recalling of the order dated 22.6.2009 was filed by him till 15.1.2010, it was only after his statement was recorded at 3.00 p.m. and the questions were dictated by the Court, at the last movement an application was referred. In my view, the Trial Court was justified in coming to the conclusion that the accused only wanted to prolong the matter on one pretext to other. The Sessions Court also has considered this aspect and also has come to the said conclusion. The Sessions Court has also observed that this being the interlocutory could not be challenged in revision. 1 In my view, taking into consideration the conduct of the Petitioner herein, both the Courts below were justified in rejecting the application for recalling the complainant for cross examination. The perusal of the various dates on which the accused remained absent clearly reveals that he had no intention to cross examine the Complainant and, therefore, the Trial Court was justified in not entertaining his application for recalling the complainant for cross examination.

No case is made out for interfering with the orders passed by both the Courts below while exercising its inherent writ jurisdiction under Article 227 of the Constitution of India.

Petition is, accordingly, dismissed. (V.M. KANADE J.)