1 WP-2854-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL WRIT PETITION NO. 2854 OF 2009 1. Shri Chandru R. Soneji ) Age: 46 years, occupation Business ) Ramson, 7, "Cosmos Vijay", Shivaji Path, ) Opp. Punjab NatinoalBank, Thane (W) ) 400 602. ) 2. Smt. Usha Chandru Soneji ) Age: Adult, occupation:Business ) Ramson, 7, "Cosmos Vijay", Shivaji Path, ) Opp. Punjab National Bank, Thane (W)- ) 400 602. ).. Petitioners (Org.Accused) Versus 1. Shri Kishore Dharmadas Ahuja ) Age: 45 years, occupation: Business ) At Kishor Nagar, 3rd floor, Kopri, ) Thane (East). )(Og.complainant) 2. The State of Maharashtra )..Respondents Shri Dilip Devadiga, Advocate, for the petitioners. Shri Kailash R. Tiwari, Advocate, for the respondent No.1. Ms. M.H.Mhatre, APP, for the Respondent No.2 State. CORAM: J.H.BHATIA,J. DATE : 12th August, 2010. JUDGMENT 1. Rule. Rule made returnable forthwith. Heard the learned Counsel for 2 WP-2854-09.sxw the parties. As per the affidavit filed by the petitioners, notice has been served on the respondent No.1 - complainant, but none is present for the respondent No.1. Notice was issued clearly indicating that the petition may be finally disposed of at the admission stage. 2. It appears that the respondent No.1 filed a complaint under Section 138, Negotiable Instruments Act against the petitioners on 4.5.2001 in respect of 12 cheques for total amount of Rs.5 lakh which were dishonoured and payment was not made inspite of notice. On 19.1.2005, the complainant had filed the affidavit of examination-in-chief and the matter was pending for cross- examination by the accused. The accused and his Advocate had adopted delaying tactics and the matter could not proceed further. On 20.10.2008, the complainant made an application Ex.61 before the trial Court to pass an order to proceed without cross-examination. After hearing the learned J.M.F.C. passed an order directing that in view of the ample opportunities given to the accused and inspite of waiting till 4.20 p.m., the Advocate for the accused was not present to cross- examine the complainant, the cross-examination of the complainant shall be deemed to be declined. The complainant was directed to proceed further accordingly. On 15.4.2009, the accused made an application Ex.64 seeking to recall the order dated 20.10.2008 and to permit him to cross-examine the 3 WP-2854-09.sxw complainant. After hearing the parties, that application Ex.64 was rejected. Hence, the accused has filed this petition. 3. From the facts noted above, it is clear that the accused and his Advocate adopted delaying tactics and for about 3 years and 9 months, they failed to cross-examine the complainant and in the result, the matter could not proceed further. After the order dated 20.10.2008, they kept silence for six months and then moved an application Ex.64 seeking to recall that order and to permit cross- examination. 4. The learned Counsel for the petitioners contended that the complaint relates to the dishonoured cheques of Rs.5 lakh and therefore, in the interest of justice, one opportunity may be given to the accused to cross-examine the complainant. Though the attitude of the accused and his Advocate before the trial Court cannot be appreciated, in the interest of justice, he may be given one opportunity on paying heavy costs. The learned Counsel for the petitioners agrees to pay costs of Rs.25,000/-. 5. For the aforesaid reasons, the petition is allowed subject to payment of costs of Rs.25,000/- (Rupees twenty five thousand only) to the 4 WP-2854-09.sxw complainant/respondent No.1 within two weeks from this day. If the costs is paid within the stipulated period, the accused shall be permitted to cross-examine the complainant and also other witnesses, if any, but no adjournment shall be granted at the request of the accused or his Advocate. In case, the costs is not paid within the stipulated period, this petition shall be deemed to have been dismissed. The costs is allowed to be deposited before the trial Court and on its being deposited, the same shall be allowed to be withdrawn by the complainant. Rule made absolute accordingly. (J.H.BHATIA,J.)