IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2278 OF 2007 CRIMINAL WRIT PETITION NO. 2278 OF 2007 CRIMINAL WRIT PETITION NO. 2278 OF 2007 Dr.Pankaj Champaklal Gandhi.... Petitioner versus The State of Maharashtra & ors...... Respondent. Mr. Rajendra Sorankar for the petitioner. Mr. Y.S.Shinde APP for State. Respondent no.2 present in person. CORAM; A.P. DESHPANDE, J. CORAM; A.P. DESHPANDE, J. CORAM; A.P. DESHPANDE, J. DATED; 6TH FEBRUARY, 2008 DATED; 6TH FEBRUARY, 2008 DATED; 6TH FEBRUARY, 2008 P.C.; P.C.; P.C.; 1. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 2. The present petitioner is original accused whereas the respondent no.2 is the complainant. Two complaint cases were instituted by respondent no.2 against the present petitioner for commission of offence under section 138 of N.I. Act way back in the year 1992 which are renumbered as C.C.No. 95/SS/2006 and 96/SS/2006 which are yet awaiting final decision. The evidence of the complainant is over. However, the evidence of the accused is yet to be recorded. Aggrieved by the order dated 1-12-2007 passed by the Metropolitan Magistrate, 11th court at Bandra, Bombay, the present writ petition has been filed. 3. The Sessions court, in an earlier round of litigation wherein the present petitioner had questioned the legality of the order of imposing costs, had directed the accused to complete his evidence from his side within a month. Despite the said direction, the petitioner had not adduced evidence. There is also a direction issued by the Sessions Judge that the cases in question need to be tried on day to day basis. On 1-12-2007 the cases were listed for evidence, the petitioner engaged a new advocate, he filed vakalatnama and an application for adjournment was moved on behalf of the accused allegedly on medical ground. The application was supported by medical certificate. The trial court has found that the petitioner/accused is deliberately trying to protract the trial and the trial court also doubted the genuineness of the medical certificate, although the certificate was indicating that the accused has suffered from typhoid. The trial court appears to be carrying an opinion that the conduct of the accused was not co-operative for an expeditious trial, despite repeated order passed in that regard. In the above set of facts the trial court has passed the following order. "1. The application filed by accused for exemption for his personal appearance before the court is rejected. 2. The P.R.Bonds executed by the accused in both the cases stand forfeited to the Government. 3. Issue N.B.W. in both the cases against the accused. 4. The senior Police Inspector of concerned police station is directed to depute and send one male and one female police person to execute the N.B.W. of this court against accused. 5. If the accused is found in his residence or at any other place other than clinic, dispensary or hospital thent he police persons are directed to take advice of the medical practitioner attend the accused and as per his advice the accused be arrested and if the complainant pays the charges of Ambulance then the accused be produced before the proper medical authority of Sr. J.J.Hospital, Mumbai. If complainant refused to pay the charges of ambulance then the police persons are directed to make request to the medical practitioner attending the accused to give recent certificate about the medical condition/health of accused. This certificate is liable for the examination of the above named proper medical authority of Sr. J.J.Hospital, MUmbai and the accused be kept in the same clinic, dispensary, Hospital and the police persons should not arrest the accused if he is lying on the bed and shall produce the medical certificate given by said medical practitioner attending the accused before this court at 12.15 p.m. on 4-12-07. 6. If complainant pays charges of ambulance then the accused be send to Sir J.J.Hospital, Mumbai at the earliestafter his arrest by police. 7. After hospitalization in Sr. J.J.Hospital as per the advice of medical officer if accused is discharged from J.J.Hospital, he be send in Judicial Custody and be produced before the court on 4-12-07 by jail authority at regular time. 8. The both these cases shall proceed as per law and procedure on day to day basis since 4-12-07 as per the directions of Hon’ble Sessions Court Shri Vaidya Saheb of Mumbai. 9. Copies of this order one each be kept on record. One copy be send to Senior Police Inspector of concerned Police stn. One copy be given in the hands of arresting police to show the same to the medical practitioner if accused is found lying in his clinic/hospital. One copy be send to the Medical Officer of J.J.Hospital and one copy be provided to the jail authority." 4. The trial court has rejected the application filed by the accused and the P.R.Bond executed by the accused is forfeited. Non bailable warrant was also issued against the accused and the police inspector is directed to depute an officer for execution of the non bailable warrant. Directions were also issued for securing the presence of the accused. Directions in regard to hospitalization of the accused in J.J.Hospital is also issued. The accused has been directed to be taken in judicial custody. 5. Perusal of the above referred directions in a complaint under sec. 138 of N.I.Act are disproportionate and uncalled for. 6. On perusal of record, I have no iota of doubt that the petitioner/accused has been deliberately avoiding the trial of the cases under one pretext or the other. As the cases are pending for last 12 years on account of non co-operative conduct of the accused, immediate measures need to be taken for disposal of cases within the stipulated time frame. The respondent who is appearing in person, in all fairness states that he is not interested in pursuing the off shoot such as genuineness or otherwise of the medical certificate. But he insisted that while passing appropriate orders, direction for adjudication of both the cases need to be secured by trying the cases on day to day basis. The petitioner has given an undertaking in this court that he will not seek any adjournment in the proceedings pending on the file of Metropolitan Magistrate, 11th Court, Bandra. It is further stated in the undertaking that he is ready for expeditious and day to day hearing of the case. It is further stated that if and in case for a genuine reason, the accused is forced to seek an adjournment, he would compensate the complainant by paying cost as directed by the court. Having regard to the fact, the undertaking tendered by the petitioner is accepted. I am informed that the cases are now fixed for trial on 16-2-2008. The learned counsel for the petitioner on instructions from the petitioner, who is present in the court submit that the petitioner will examine his witness on 16-2-2008. The Metropolitan Magistrate shall proceed to record evidence of the accused and other witnesses on day to day basis till the conclusion of the cases. The cases shall not be adjourned. In the interest of justice and with a view to avoid the cases being dragged on further, I deem it just and proper to quash and set aside the order dated 1-12-2007 passed by the Magistrate on payment of cost of Rs. 3000/- by the petitioner to accused. Rule made absolute in the above terms. The amount shall be deposited by the petitioner in the trial court within four weeks from today. 7. In view of the disposal of the writ petition, the criminal application does not survive and disposed of accordingly. ....