1 Appln.: 4431/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4431 OF 2010 Mr. Kalpesh Hirji Shah .... Applicant ( Ori. Complainant) Vs. 1. State of Maharashtra .... Respondent no.1 2. Shri Manoj Murarka .... Respondent no.2 (Ori. accused) Mr. P.J. Kanani, Advocate for applicant. Mr. P.S. Hingorani, APP for State. Mr. Rajesh P. Behere with Mr. P.A. Gokhale, Advocates for respondent no.2. Coram : Smt. R.P. SondurBaldota, J. Date : 19th January 2011 PC : 1. The complainant in the proceedings under Section 138 Negotiable Instruments Act files this application under Section 482 Code of Criminal Procedure for quashing and setting aside of the order dated 7th September 2010 and 21st September 2010 passed by the trial Court. Considering the short question involved in the application, the same is taken up for final hearing at the stage of admission itself. 3. On 31st January 2006, the applicant filed complaint under Section 138 Negotiable Instruments Act vide C.C. No.64/2006 in the Court of Metropolitan Magistrate, 20th Court, Mazgaon, Mumbai alleging that the cheque issued by respondent no.2 in the sum of Rs.8.00 lacs 2 Appln.: 4431/2010 towards repayment of the friendly loan had been dishonoured and after issuance of the statutory notice, the respondent no. 2 failed to pay the amount of the cheque to the applicant. On 7th April 2006, the particulars of the offence were explained to respondent no.2, who pleaded “not guilty” to the charge and the matter was adjourned for recording of evidence. The applicant filed his affidavit of examination- in-chief on 3rd July 2006 and copies thereof furnished to respondent no. 2 on the same day. Thereafter for a long time, respondent no.2 went on taking adjournments to cross-examine the applicant. Finally the cross- examination was commenced about three years thereafter i.e. on 5th February 2009 and was continued on five further dates i.e. 4th March 2009, 25th June 2009, 7th July 2009, 8th October 2009 and 1st October 2010. On 28th February 2010, the trial Court recorded the statement of respondent no.2 under Section 313 Code of Criminal Procedure. In the statement, respondent no.2 submitted that he wanted to examine himself in support of his case and also examine witnesses. However, about six months thereafter i.e. on 5th August 2010, he filed purshis before the trial Court closing his evidence without examining himself and any witness on his behalf. Then on 30th August 2010, the written arguments were filed on behalf of the applicant and a copy thereof furnished to respondent no.2. With that the matter came to be adjourned to 7th September 2010. On that day, instead of advancing any arguments in his defence, respondent no.2 filed application for recalling of the applicant for further cross-examination. He claimed in the application that the evidence of the applicant pertaining to his 3 Appln.: 4431/2010 income-tax returns and books of accounts is vague and needs further elucidation to enable the Court to get to the truth of the matter . According to respondent no.2, the interest of justice required that the applicant be recalled under Section 311. Cr.P.C. for further cross- examination. In the application, respondent no.2 solemnly, made a statement that in the event of the applicant being recalled for further cross-examination, his Advocate was prepared to forthwith begin his cross-examination. The applicant had opposed the application by filing his reply contending that respondent no.2 has had sufficient opportunity to cross-examine the applicant, Further office copies of the income-tax returns and the books of accounts (Exhibit P-10 and P-11) produced by the applicant during the course of the trial were at the instance of respondent no.2. As such the documents became the evidence of respondent no.2. The trial Court, however by its order dated 7th September 2010 allowed the application for the reason that the cross-examination had been conducted not on a single date but on various dates, in order to avoid multiplicity of proceedings and to decide the dispute between the parties once for all, it was judicious to give an opportunity to respondent no.2 to further cross-examine the applicant on the points mentioned in the application. The trial Court imposed costs quantified at Rs.700/- upon respondent no. 2. 4. After this order, the course of conduct expected on the part of respondent no.2 was to proceed with cross-examine the applicant on next date of the matter i.e. 21st September 2010. Respondent no.2, however, instead of cross-examining the applicant, filed another 4 Appln.: 4431/2010 application, this time for issuing witness summons to the Income-Tax Office. 20(1)(4) Mumbai, with a direction for production of the original income-tax returns submitted by the applicant along with the annexures therefor under Section 91 Cr.P.C. The applicant opposed this application. The second application also came to be allowed by the order dated 21st September 2010, despite the opposition of the applicant, and witness summons issued to the income-tax office for production of original copies of income-tax returns of Exhibit P-10 and P-11. 5. The learned counsel for the applicant submits that both the orders i.e. 7th September 2010 as well as the order dated 21st September 2010 cannot be justified. According to her no application ought to have been entertained by the trial Court, at such a belated stage and in view of the fact that respondent no.2 has had extensive opportunity of cross-examining the applicant. She points out from the cross-examination of the applicant conducted on 25th June 2009 and 8th October 2009 that questions in fact had been put to the applicant on his income-tax returns as also the statement of accounts. The applicant has also produced certified copies of the statement of respondent no.2 under Section 313 Cr.P.C. Perusal of the statement shows that the only claim made by respondent no.2 therein was that it was a false case filed against the respondent no.2. There was not even a reference made to Exhibits 10 and 11, much less objection thereto in the statement. 6. Since the office copy of income-tax returns and the statement of accounts of the applicant, had been brought on record at the instance 5 Appln.: 4431/2010 of respondent no.2, it became the evidence of respondent no.2 and there was no question of respondent no.2 challenging the same by doubting the contents thereof. In any case neither the application dated 30th August 2010 nor the application dated 21st September 2010 alleged that the contents of Exhibit P-10 and P-11 were doubtful or were not true. Therefore no case for issuance of witness summons to the income-tax authorities for production of original documents was in fact made out. In these circumstances, the order dated 21st September 2010 cannot be justified and hence cannot be sustained. This Court, however, is not willing to disturb the order dated 7th September 2010 by way of a final and complete opportunity to respondent no. 2 to complete his defence by further limited cross-examination of the complainant. 7. The circumstance, the application is partly allowed. The order dated 21st September 2010 is set aside. Respondent no. 2 is at liberty to cross-examine the applicant on the next date of the matter in the trial Court. The cross-examination would be limited to the issues mentioned in the application dated 30th August 2010. The applicant must remain present in the Court on that day, to subject to present himself for cross-examination. No adjournment will be sought by respondent no.2 on any ground. ( Smt. R.P. SondurBaldota, J.) 6 Appln.: 4431/2010