1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION. APPELLATE JURISDICTION. APPELLATE JURISDICTION. WRIT WRIT WRIT PETITION NO.86 OF 2008 PETITION NO.86 OF 2008 PETITION NO.86 OF 2008 Shri Balkisan B. Maniyar : Petitioner versus State of Maharashtra & Anr. : Respondents. Mr.S.V.Marwadi with Mr.S.P.Kadam i/by S.P.Narkar for the petitioner. Ms.Nipa Singh i/by M/s.Mahesh Menon & Co. for Respondent No.2. Mrs.P.D.Shinde, APP, for the State. CORAM CORAM CORAM : A.P.DESHPANDE, J. : A.P.DESHPANDE, J. : A.P.DESHPANDE, J. DATED DATED DATED : JANUARY 28, 2008. : JANUARY 28, 2008. : JANUARY 28, 2008. P.C. P.C. P.C. 1. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of the parties. 2 2. Respondent No.2 filed a complaint against the present petitioner/accused No.2 under Section 138 of the Negotiable Instruments Act. Respondent No.2, by passing a resolution, had appointed Shri Manoj Prajapati as the complainant’s representative to conduct the proceedings. Shri.Prajapati filed an affidavit of examination-in-chief on 17th December 2003. Thereafter he remained absent and did not turn up to enable the present petitioner to cross examine him. The continuous absence of Shr.Prajapati compelled the present petitioner to move an application under Section 256 of the Cr.P.C. for dismissal of the complaint. Thereafter the witness appeared before the Court on 4th February 2006, on which date, part of the cross examination of the witness was recorded and the remaining cross examination was adjourned till next date. After the adjourned date, the witness remained absent continuously. The record reveals that the accused has vigilantly defended the proceedings by remaining present in the court. An application for substitution of the representative of complainant-company, supported by a resolution, was moved by one Bharat Somani, 3 who happens to be a director of the complainant-company. The substitution application was granted. However, the trial Court directed that witness Manoj Prajapati, who was partly cross examined, need to be further made available for cross examination. Thus, in compliance of the order passed by the trial Court, the complainant kept the same witness present on 10th October 2007. 3. On 10th October 2007, the advocate for the accused, being ill, an application was moved by the advocate’s junior intimating the court that the advocate is suffering from herpes and hence the doctor has advised him to take rest for 10 days. It is further volunteered in the said application that the court may grant costs to the other side or the witness for the inconvenience caused. The learned counsel for the petitioner has submitted that the application moved for adjourned dated 10th October 2007 was the first application made by the accused for adjournment. Strangely enough the trial court rejected the application and called upon the junior advocate to proceed with the cross examination. The junior advocate put 3/4 questions to the witness. 4 According to the counsel for the petitioner, the junior advocate, not being in know of the facts, could not effectively cross examine the witness and denial of the adjournment sought on 10th October 2007 would result in mis-carriage of justice. 4. In the facts and circumstances, an application was moved under Section 311 of the Cr.P.C. for recalling the P.W.1 Manoj Prajapati for his further cross examination in the said case. The said application came to be rejected by the trial court. Aggrieved thereby, the petitioner filed a Revision before the Sessions Court and after dismissal of the Revision, the petitioner has challenged both the orders by filing the present writ petition. 5. Having regard to the totality of the facts and circumstances narrated herein above, I am of the clear view that declining the adjournment on 10th October 2007, when an application for adjournment was moved on the ground of illness of the advocate, was not justified. At any rate, when an application under Section 311 of the Cr.P.C. was moved, the 5 trial Court ought to have allowed the same. For just decision of the case, permission to recall the P.W.1 ought to have been granted. Denying the opportunity to the present petitioner/accused to further cross examine the P.W.1 by recalling him would not be in furtherance of cause of justice. 6. Perused the impugned orders. The same deserve to be quashed and set aside and hence in the interest of justice, the petition deserves to be allowed and I proceed to allow the same. In all fairness, the learned counsel for the petitioner submits that he has no objection for compensating the witness, who has left the services of Respondent No.2, for the inconvenience caused to him by remaining present on 10th October 2007. 7. In the result, the writ petition is allowed. The impugned orders passed by the Trial Court and the Revisional Court dated 30th October 2007 and 17th December 2007 in C.C.No.1767/SS/07 and in Criminal Revision Application No.1250 of 2007 respectively are quashed and set aside. The application filed by the petitioner/accused under 6 Section 311 of the Cr.P.C. is allowed. The trial Court shall recall the P.W.No.1 Manoj Prajapati for his further cross examination by the petitioner/accused and shall then proceed to decide the case in accordance with law. This order is subject to payment of costs of Rs.2000/- to the witness. The aforesaid amount shall be deposited in the trial court within two weeks from today. 8. During pendency of this petition, Non-bailable warrant has been issued against the present petitioner/accused and hence this Court had stayed the execution of the Non-bailable warrant. The learned counsel for the petitioner/accused makes a limited prayer to extend the interim order till the next date i.e. 13th February 2008. Interim order to continue till 13th February 2008. 9. Rule is made absolute in above terms. [A.P.DESHPANDE,J] [A.P.DESHPANDE,J] [A.P.DESHPANDE,J]