1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR Criminal Application No. 3472/2009 Deepakkumar Dwarkadas Agrawal, age 50 years, Occ. Business, Prop. Of M/s. Hiralal Dwarkadas r/o Old Cloth Market, Akola,Tq. dist. Akola .. APPLICANT .. Versus .. 1. State of Maharashtra, thr. Police Station Officer, City Kotwali, Akola. 2. Ashokkumar Brijmohan Dalmiya, aged about 58 years, Occ. Business, Prop of Asian Agencies, r/o Laxmi Nagar, Kholeshwar, Akola,tq.dist.Akola .. NON APPLICANTS --------------------------------------------------------------------------------- Mr. S. A. Mohta, Advocate for applicant. Mr. V. A. Thakare, A.P.P. for non applicant no.1-State --------------------------------------------------------------------------------- CORAM:- S. S. SHINDE, J. DATED :- 16 th NOVEMBER, 2009 P. C. 1. This application is filed challenging order dated 05.11.2009 passed by 5th Jt. Civil Judge Junior Division and 5th Judicial Magistrate First Class, Akola in Summary Criminal Case No. 5035/2003 at Annexure-8. 2. Learned counsel for the applicant submits that the complainant was cross-examined on 01.08.2008 and, 2 thereafter since the Court time was over, the cross- examination was deferred till next date i.e. 18.08.2008. According to learned counsel, the applicant filed application for exhibiting the documents. Since, the said application was pending for hearing and final decision, counsel for the applicant could not cross-examine the complainant further and, therefore, request was made to grant some time till the application for exhibiting the documents is decided. According to learned counsel for the applicant, application for exhibiting the documents was rejected by the trial Court. Therefore, application under Section 482 of the Code of Criminal Procedure was preferred before this Court and this Court on 13.08.2009, allowed to withdraw the application with liberty to raise all points in the matter at the time of final hearing of Summary Criminal Case No. 5035/2008. This Court, while allowing the applicant to withdraw the application, further observed that the trial Court shall hear and dispose of the trial in Summary Criminal Case No. 5035/2003 as expeditiously as possible by 31.03.2010. Learned counsel further submitted that the complainant himself has closed 3 his evidence in the month of September-2009 and, thereafter, the an application came to be filed on behalf of the applicant for further cross-examination of the complainant. The learned counsel further submitted that in the interest of justice further cross-examination of the complainant by the applicant is necessary. Learned counsel further submitted that one more opportunity may be given to the applicant subject to the costs in the interest of justice. Learned counsel for the applicant further invited my attention to the grounds taken in the application and submitted that the applicant may be allowed to further cross-examine the complainant. 3. I have heard learned counsel for the applicant at length. Perused the application, impugned order and annexures thereto. Learned Judicial Magistrate First Class has recorded the facts in the impugned order that the accused cross-examined the complainant on 01.08.2008 but as the Court time was over, the cross-examination was deferred till next date i.e. 18.08.2008 but since then till 15.06.2009, the accused did not further cross-examine 4 the complainant hence on 15.06.2009, the matter was posted for no cross order and thereafter on 04.09.2009, as the accused has failed to further cross-examine the complainant, order of no cross was passed against him and the matter was posted for further evidence of the complainant on 25.09.2009. The complainant closed evidence and filed pursis. In the meanwhile, on 25.09.2009 accused moved application Exh.-83 under Section 219 of the Code of Criminal Procedure and prayed for trying all five cases together pending on the file of the Court on 14.10.2009. The application Exh.-83 came to be rejected and the matter was posted on 29.10.2009 for recording statement of accused under Section 313 of the Code of Criminal Procedure. On 29.10.2009, accused has moved an application and sought permission to further cross-examine the complainant by setting aside no cross- order passed on 05.11.2009. 4. The learned Judge, after hearing the respective parties, has recorded that though no cross order was passed, subsequently same was set aside and 5 fair opportunity was given to cross-examine the complainant but after part cross-examination, accused did not cross-examine the complainant. It is further observed that the accused did not move the application for setting aside order dated 04.09.2009 on the same day so also on the subsequent date. The learned Judge further observed that since there are directions by this Court to complete the trial and deliver judgment by 31.03.2010, no further opportunity of cross-examination can be given to the applicant. 5. On careful perusal of the impugned order, passed by Courts below, it clearly appears to me that already one opportunity was given to the applicant by setting aside the no cross order and, thereafter, again the applicant was given an opportunity to cross-examine the complainant. Though, the matter was posted for further cross-examination on 18.08.2008 till 04.09.2009 the applicant did not take any steps to cross-examine the complainant, it may be noted that he has filed some applications for exhibiting some more documents that 6 necessarily does not mean that the Court should stay further proceeding and wait for the result of any of such applications. Therefore, the Court below has rightly rejected the application for setting aside the order dated 04.09.2009. It is true that fair opportunity should be given to the accused to face any proceeding. However, that does not mean that the complainant should suffer to a great extent that he should feel that he is not the complainant but he is facing trial like accused. In the facts and circumstances of the case, no case is made out for interference. The application is, therefore, rejected. JUDGE kahale