M/s. R. M. Associates v. Mr. R. P. S. Mineral Trading Company & Ors.

Mr. R. P. S. Mineral Trading Company, A partnership Firm having their office at H. No. 12, Gokulwadi, Sanquelim, Goa, represented by its Partner Mr. Pravin D. Blaggan, Residing at Sanquelim, Goa. State of Goa through Public Prosecutor, High Court. ...... Respondents Mr. S. M. Singbal, Advocate for the Petitioners. Mr. S. G. Bhobe, Advocate for the Respondent No.1. Mr. C. A. Ferreira, Public Prosecutor for the respondent No.2. CORAM: A. P. LAVANDE, J. DATE OF RESERVING :15 th November, 2008. DATE OF PRONOUNCING: 18 th November, 2008 . JUDGMENT -2- Heard learned Counsel for the parties. Rule. By consent heard forthwith. By this Petition, the petitioner challenges orders dated 16.09.08 and

04.11.08 by the J.M.F.C., Bicholim, in Criminal Case no. 93/OA/138/07/A by which, applications filed by the Petitioner seeking leave to lead evidence has been dismissed.

4. Briefly, the facts leading to filing of the present petition are as under : Respondent no.1 filed above case against the Petitioners for dishonour of two cheques for Rs.7,00,000/- under Section 138 of the Negotiable Instruments Act ('The Act' for short). On 10.07.08, the matter was fixed for recording statements of the accused. On the said day, accused no.1 was absent and, as such, application for exemption was filed which was granted and the matter was adjourned to 24.07.08 for recording statements of the accused. On the said day, statements under Section 313 of the accused were recorded and the matter was adjourned to 19.08.08. The application for adjournment was filed on 19.08.08, which was granted and the matter was adjourned to 16.09.08 for final arguments. On 16.09.08, an application was filed seeking adjournment to file evidence by way of affidavit, which was dismissed by the Magistrate on the ground that matter was fixed for final arguments and the accused had not given any list of witnesses which they proposed to examine in support of their defence. Thereafter, the matter was adjourned to 01.11.08 for final arguments. Since the Magistrate was on leave on -3-

01.11.08, the matter was adjourned to 4.11.08. On 4.11.2008, an application on behalf of the accused was filed seeking leave to examine the accused under Section 315 Cr.P.C. along with application. Affidavit in evidence of Shri Moreshwar Sawant dated 4.11.08 was filed along with list of documents which the accused proposed to reply upon. The accused also filed list of witnesses mentioning the names of Shri Rajendra Bakhle and Narendra B. Karpe as witnesses whom the defence proposed to examine. The learned Magistrate dismissed the application filed by the accused as not maintainable in view of earlier order dated 16.09.08.

5. Mr. Singbal, Learned Counsel for the Petitioner submitted that serious prejudice would be caused to the petitioners in case impugned orders dated

16.09.08 and 04.11.08 are not set aside and the petitioners/accused would be deprived of their right to lead defence evidence which is a valuable right available to the accused to prove their defence. He invited my attention to the fact that application dated 19.08.08 filed by the accused in which the accused had sought adjournment for 20 days for filing affidavit in evidence along with list of witnesses was granted by the learned Magistrate. Learned Counsel submitted that serious prejudice would be caused to the accused in the event they are not permitted to lead evidence in support of their defence. Learned Counsel further submitted that the impugned order be set aside by putting the accused to terms as this Court deems fit and proper including costs.

6. Per Contra, Shri Bhobe, learned Counsel for the Respondent/ Complainant submitted that the learned Magistrate was perfectly justified in passing the impugned Order and, as such, no fault can be found with the impugned orders. -4-

7. I have considered the submissions made by the learned Counsels for the parties and perused the record. No doubt, the learned Magistrate was justified in passing the impugned Order since the matter was fixed for final arguments on

16.09.08 and though on 19.08.08 adjournment was granted to the accused to lead defence evidence, the accused did not lead any evidence on 16.09.08. The learned Magistrate also held that the matter was an old matter in which direction was given for disposal and, therefore, dismissed the application for adjournment filed by the accused to lead defence evidence. However, the fact remains that the effect of the impugned orders is that the petitioners have been deprived of an opportunity to lead evidence to prove their defence. Considering this fact and having regard to the submission made by Mr. Singbal, that the impugned orders be set aside on such terms and conditions as this Court deems fit and proper, I am of the considered opinion that the interest of justice would be served by setting aside the impugned orders and permitting the petitioners to lead evidence in support of their defence by imposing heavy costs.

8. In view of the above, the impugned orders dated 16.09.08 and 04.11.08 passed by the learned Magistrate are quashed and set aside subject to payment of costs of Rs.10,000/- to Respondent no.1 within a period of one week. The petitioner shall deposit the costs before the J.M.F.C., Bicholim within one week. Liberty to respondent no.1 to withdraw the costs after the same are deposited. The learned Magistrate shall consider the affidavit in evidence of Shri Moreshwar -5- Sawant and record his evidence. The petitioners are also permitted to examine the other two witnesses namely Rajendra Bakhle and Narendra B. Karpe. The learned Magistrate may fix the date/dates for their appearance and permit the accused to examine them on the date/dates fixed. In case the defence witnesses do not appear on the date/dates fixed, the learned Magistrate shall be at liberty to pass appropriate orders.

9. The learned Magistrate shall dispose of Criminal case no. 93/OA/138/07/A expeditiously and in any case on or before 31.12.08.

10. Rule is made absolute in the above terms. arp/* A. P. LAVANDE, J.