IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.WRIT PETITION NO.882 OF 2008 ALONGWITH CRI.WRIT PETITION NO.892 OF 2008 Pravin Shreeram Gholap .. Petitioner (In all the petitions) Vs. Dr.Ajit Genbappu Kadam & Anr. .. Respondents (In all the petitions) Smt.Lalita Panchakshari for the Petitioner. Mr.S.A.Sawant for the Respondent No.1. Ms.A.T.Jhaveri, A.P.P for the Respondent No.2. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE : 10th July 2008. P.C.: . On the last date, the advocates appearing for the parties were put to notice that Writ Petitions will be disposed of finally at the stage of admission. The 1st respondent herein filed complaints against the petitioner under section 138 of the Negotiable Instruments Act, 1881. Process was issued on the said complaints and the trial progressed. The 1st respondent complainant was examined and his cross-examination was completed by the advocate for the petitioner. : 2 : 2. An application was made by the petitioner under section 311 of the Code of Criminal Procedure, 1973 for recalling the 1st respondent for further cross-examination. The main ground is that certain important questions remained to be asked in the cross-examination. The said application was rejected by the learned Magistrate by pointing out the conduct of the petitioner. The learned Magistrate found that the petitioner had previously engaged two advocates and more than sufficient opportunity was granted to the petitioner to cross-examine the 1st respondent. The revision applications were filed by the petitioner against the said orders passed by the learned Magistrate in both the complaints. The revision applications have been rejected. 3. The learned counsel for the petitioner has invited my attention to the undertaking filed in this Court by the petitioner in both the petitions. He submits that in view of the undertaking of the petitioner, one more opportunity may be granted to the petitioner to cross-examine the 1st respondent. 4. The learned counsel appearing for the 1st : 3 : respondent pointed out that the petitioner has delayed the trial. He pointed out that initially order of no cross was passed as no one turned up for cross-examining the 1st respondent. The petitioner was granted an opportunity to cross-examine the 1st respondent after the petitioner engaged services of another lawyer. He pointed out that the petitioner has himself examined as a witness and he has also examined other witnesses. He, therefore, submitted that no interference was called for. 5. I have given careful consideration to the submissions. It will be necessary to refer to the averments made in the application made by the petitioner. In paragraph 2 of the said application, the petitioner has stated thus: "The complainant was cross examined by the advocate of the accused but as there are series of facts involved in the present case and as such some of the important questions regarding previous complaints, alleged notice, and alleged cheques in question and other important questions regarding accounts and statements of complainant in other F.I.R., was inadvertently : 4 : and as a bona fide mistake, remained to be put to the complainant. These questions are essential to decide the real dispute and controversy between the parties and to find out real state of affairs. The accused has no other intention but to extract the real state of affairs by further cross. Hence it is necessary to recall the complainant for further cross examination which will go to the root of the case and will help the Hon’ble Court to decide the present case. The complainant had deposed in his chief whatever he wanted to state and as such he had put forth his story before the Court but if he is not cross examined at the instance of accused in it’s entirety then certainly the injustice will be caused to the accused and he will be adversely prejudiced. It is essential to give full opportunity to accused to defend himself and cross examine the complainant even by way of further cross examination by recalling the witness." 6. It is true that the trial has been delayed on account of some default on the part of the petitioner. : 5 : The petitioner has been arraigned as accused in the private complaints filed by the 1st respondent. In view of the what is stated in the application by the petitioner and in view of the undertaking of the petitioner filed in this Court, one more opportunity deserves to be granted to the petitioner to further cross-examine the 1st respondent. The petitioner, however, will have to be put to terms. Apart from directing that the petitioner will not seek any adjournment, the petitioner will have to pay costs of this petition to the 1st respondent. 7. After the petitioner cross-examines the 1st respondent, if the 1st respondent so desires, he will be entitled to recall the petitioner and other witnesses examined by the petitioner for further cross-examination. 8. Hence, I pass the following order: (i) The impugned orders are quashed and set aside. (ii) The 1st respondent will appear before the learned trial Judge on 21st July 2008 at 11.00 a.m and will offer himself for : 6 : cross-examination by the petitioner. It is made clear that the petitioner will not be entitled to seek any adjournment and he will ensure that his advocate is present for cross-examining the 1st respondent on the said date. (iii) It will be open for the 1st respondent to recall the petitioner and his other witnesses for further cross-examination. (iv) The petitioner will pay costs of each petition to the 1st respondent quantified at Rs.3,000/-. The amount of costs be paid within a period of 4 weeks from today. (v) The learned trial Judge shall decide the complaints finally as expeditiously as possible and within a period of one month from the date on which the recording of evidence is completed. (vi) The trial Court to act upon an authenticated copy of this order. : 7 : (vii) The petitions are partly allowed in above terms. (A.S.Oka,J)