1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 1013 OF 2009 Prabhakar Raghunath Shisode, Age 36 yrs., Occu. Service, R/o. Ashramshala, Sondale, Tq. Shindkheda, Dist. Dhule ....Petitioner. Versus Satish Damu Wani, Age 47 yrs., Occu. Business, R/o. Songir, Tq. & Dist. Dhule ....Respondent. With CRIMINAL WRIT PETITION NO. 1014 OF 2009 Prabhakar Raghunath Shisode, Age 36 yrs., Occu. Service, R/o. Ashramshala, Sondale, Tq. Shindkheda, Dist. Dhule ....Petitioner. Versus Satish Damu Wani, Age 47 yrs., Occu. Business, R/o. Songir, Tq. & Dist. Dhule ....Respondent. Mrs. S.T. Kazi, Advocate for the applicant in both petitions. Mrs. Sapna Bahalkar, Advocate for the respondent in both petitions. CORAM : P.R. BORKAR, J. DATE : 12th January, 2010 2 ORAL JUDGMENT : 1. Heard Mrs. S.T. Kazi for petitioner and Mrs. Sapna Bahalkar for respondent. 2. Rule. Rule made returnable forthwith. With the consent of parties heard finally. The learned advocate for respondent waives service of notice. 3. These are two writ petitions filed as a result of orders, dated 20/7/2009 passed on applications, Exhs. 37 and 35, respectively in S.T.C.C. Nos. 2867/2007 and 2868/2007, rejecting the applications for recalling the complainant/ witnesses for cross examination. 4. The brief facts giving rise to these writ petitions are stated below :- Present respondent is the original complainant, who had filed S.T.C.C. No. 2867/2007 and 2868/2007 for commission of offence punishable under section 138 of the Negotiable Instruments Act against the petitioner. In both cases, the complainant and the accused are same. These cases are separate because of they arise out of dishonour of two cheques. The copies of Roznamas are produced in these writ petitions. In both these criminal cases, process was issued and accused appeared on 11.8.2008 and furnished bail. Thereafter, matters were adjourned to 3 21.11.2008. On that day surety of the accused was accepted. The complainant gave application for adjournment which was allowed and matter was adjourned to 20.1.2009. On that day the complainant had filed his affidavit in lieu of examination in chief. Application was given by the complainant for exhibiting the documents and matter was adjourned to 25.3.2009. On that day, the complainant and his advocate were present, but the accused filed Vakilpatra of another Advocate Shri. M.R. Mane and the adjournment was allowed on the cost of Rs. 100/- in each case. Matters were adjourned to 27.4.2009. On that day complainant had filed an application for adjournment which was allowed and the matter was adjourned for cross examination on 18.06.2009. On that day complainant was absent, accused was present and the application filed by the complainant for adjournment was granted and the matters were adjourned to 27.7.2009. On 27.7.2009 the application for adjournment filed by the advocate for accused was rejected and the order was passed below Exh. 1. It was ordered that there would not be cross examination by the accused and the matter was posted on 7.8.2009 and the statement of accused under section 313 of Cr.P.C. was recorded. Thereafter, on 7.9.2009 the accused gave applications for setting aside the order of no-cross-examination and for recalling the complainant for cross-examination. The said applications came to be dismissed and on 7.9.2009 the matters were adjourned to 26.9.2009. Hence, the present writ petitions are filed. 4 5. Heard both sides. Mrs. Bahalkar stated that there was deliberate omission on the part of accused to cross examine the witness. It appears that on 27.7.2009 Exh. 35 was given in S.T.C.C. No. 2867/2007 and application Exh. 37 was filed in S.T.C.C. No. 2868/2007. Many applications for adjournments were given and the order was passed to proceed without cross examination. It is also stated in the application dated 7.9.2009 which was rejected that the Court has no power to recall its order. On application dated 7.9.2009 the advocate of the complainant has given his detailed say and has given history of the case and made mis-statement that on 7.8.2009 the day on which statement of accused under section 313 of Cr.P.C. was recorded, there was no application for adjournment. 6. After giving anxious consideration to all aspects argued by the learned counsel for the petitioner and advocate for respondent, respectively, in my considered opinion, there was to much haste in recording the statement of accused under section 313 of Cr.P.C. It is clear from the application given on 7.9.2009 that on 20th July 2009 after order of no cross examination, the accused had given application, but it was rejected. In my opinion, though the advocate of the accused could have avoided the situation, in the interest of justice, these petitions should be allowed. Hence, the petitions are allowed. The orders passed by the learned Magistrate of no cross examination of the complainant are hereby quashed and set aside. The parties are directed to appear with 5 their advocates before trial Court on 10th of February 2010 and then the Magistrate shall allow the complainant and his witnesses to be examined by the advocate for the accused and shall proceed to decide the matter according to law. Interim order passed by this Court is vacated. Rule is made absolute in above terms. [ P.R. BORKAR, J. ] ssc/ca1013.09