1 (crim wp 2673 of 2009) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2673 OF 2009 Nikhil Champaklal Morsawala ...Petitioner vs. State of Maharashtra and Anr. ...Respondents ----- Mr.S.V. Marwadi i/b. Mr.S.P. Narkar for Petitioner Mr. P.S.Hingorani -APP for the State. ----- CORAM: V.M. KANADE J. DATED: 8TH SEPTEMBER, 2010 P.C. 1. Heard the learned Counsel for the Petitioner. 2. The Petitioner is challenging the order of issuance of process passed by the Learned Metropolitan Magistrate on a complaint filed under section 138 of the Negotiable Instruments Act on various grounds. 3. In the present case, the Petitioner had filed a criminal revision application in the Sessions Court, challenging the order of issuance of process. Since there is a delay in filing of criminal revision application, a Misc. Application No.673 of 2008 was 2 (crim wp 2673 of 2009) filed for condonation of delay. The said application for condonation of delay was dismissed. Against the said order, the Petitioner preferred a criminal writ petition no. 1982 of 2008 which was allowed to be withdrawn by order dated 10th August, 2009. Liberty was granted to take such appropriate steps as may be advised, in accordance with law. 4. In my view, since the earlier application for quashing the issuance of process has been rejected, it is not open for the Petitioner to file a second petition on the same ground, since it is hit by the principles of constructive res judicata. 5. The learned counsel for the Petitioner has invited my attention to the judgment of the Apex Court in the case of S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Anr. reported in 2007 ALL MR (Cri) 870 (S.C.). The ratio of the said judgment will not apply to the facts of the present case, since in the said case the High Court had allowed the withdrawal with liberty to agitate the matter once again. As no such liberty was granted in this case, it is not possible to entertain present petition. 3 (crim wp 2673 of 2009) 5. The learned Counsel for the Petitioner submitted that in the present case other accused are not served and, therefore, in view of a judgment of Delhi High Court in the case of Jitendra Narottam Das Mehrotra and Ors. vs. State and Ors., the trial cannot be separated and as a result, the Petitioner is arraigned, he has to attend the Court on every date. 6. So far as the said judgment is concerned, it has been observed that the trial cannot begin unless others who are not served are declared proclaimed absconded under section 82 and 83 of Cr.P.C. The trial court is directed to pass an appropriate orders under section 82 and 83 of Cr.P.C. if the other accused are avoiding service and proceed to decide the case against the present petitioner, expeditiously and preferably within a period of three months. 7. The plea of the Petitioner has been recorded. The Petitioner is exempted from appearing in the Trial Court. His statement under 313 of Cr.P.C. may also be recorded through his advocate as per the procedure laid down under section 313 (5) of Cr.P.C. The Petitioner, however, shall give an undertaking that he shall not dispute the correctness of the answers in the statements recorded under section 313 of Cr.P.C. 4 (crim wp 2673 of 2009) If the Petitioner’s advocate does not appear, liberty is given to the Magistrate to pass an appropriate orders for securing presence of the Petitioner. Petition is, accordingly, dismissed. (V.M. KANADE J.)