- 1 - 1496.10 rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.APPLN NO.1496 OF 2010 1.Mr.Jayesh Shah .. Applicant vs 1.Mr.Chaitanya S.Bhatt 2.The State of Maharashtra .. Respondents with CRI.APPLN NO.1497 OF 2010 1.Mr.Jayesh Shah .. Applicant vs 1.Mr.Chaitanya S.Bhatt 2.The State of Maharashtra .. Respondents with CRI.APPLN.NO.1498 OF 2010 1.Mr.Jayesh Shah .. Applicant vs 1.Mr.Chaitanya S.Bhatt 2.The State of Maharashtra .. Respondents Mr.J.A.Udaipuri for Applicant Mr.Sandip Velkar for Respondent no.1 Mr.S.A.Shaikh APP for Respondents CORAM: K.U.CHANDIWAL, J DATE: 13th September,2011 P.C. - 2 - 1496.10 1. Heard. 2. An Application was moved in the respective three cases by the Complainant to issue summons to the bank officials and examine him before actual evidence of the Complainant (tendered by way of evidence). This was, before cross-examination commence. Rejection thereof is impugned by the Complainant. 3. The learned counsel for the Accused- Respondent submits that such exercise is not known to Indian Evidence Act. It will add to prejudice the Accused as his defence will be open. 4. The proceedings are under section 138 of the Negotiable Instruments Act. In the matter of such a nature, the Accused has - 3 - 1496.10 come with a bold stand of denying of documents including signature, on the cheque or of opening the Account. There was no option left to the Complainant but to invite bank officials to get the mist cleared keeping himself back to face cross- examination. 5. At this stage, it would seldom indicate that prejudice will be caused to the Accused-respondent as it would open his defence after recording the evidence of the bank officials in time prior to cross examination of the complainant. Such exercise though flows in Section 231 (2) and 242 Cr.P.C. in matters of Sessions trial and warrant cases, I do not see that any prejudice would be caused to the Accused- Respondent if entertained in terms of section 231 (2) Cr.P.C and 242 proviso of the Code of Criminal Procedure,1973 which - 4 - 1496.10 reads as under: 231 (2) Evidence for prosecution (2) The Judge may, in his discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross- examination. Section 242 Evidence for prosecution If the accused......................... of witnesses. Provided...............by the police. 2.The ......................other thing. 3.On ........ ..the prosecution Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross- examination. Section 262 Cr.P.C. allows following same procedure for summary trial, the procedure specified for trial of summons - 5 - 1496.10 case. 6. In case of this character, no apparent harm to A/c is surfacing by asking examining bank witness by deferring complainant's evidence 7. All Applications allowed. The Complainant to move the learned Judge advancing the date for issuing summons to bank officials. 8. The Complainant shall pay costs of Rs. 5000/- consolidated in three cases within one month to the Accused-Respondents. K.U.Chandiwal,J