0707appln3422.09.odt 1/2 IN THE HIGH COURT OF JUD ICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION NO. 3422 OF 2009 (Kamalkishor Fulchand Baheti Vs. Sau. Kanta Ajay Mohta & 2 others) ........................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ........................................................................................................................................................................... Mr. S. V. Sirpurkar, Advocate for the applicant. Mr. R. L. Khapre, Advocate for the respondent No.1. ....... CORAM : R. M. BORDE, J. DATED : 07TH JULY, 2010 Heard the respective Counsel for the parties. The application tendered by the applicant-accused in a pending criminal proceedings, requesting the trial Magistrate to call the complainant as a witness for cross examination, has been turned down. This order is subjected to challenge in this application. A complaint under Section 138 of the Negotiable Instruments Act has been presented by the respondents against the applicant-accused. After presentation of the complaint, verification statement of the complainant was recorded. Thereafter, at the stage of recording of evidence, the complainant authorized her husband to depose on her behalf by executing power of attorney in his favour. The evidence of the power of attorney has been recorded on behalf of the complainant. The accused-applicant has tendered an application requesting the Court to call the complainant for the purpose of cross examination. The said application tendered by the accused has been turned down by the trial Court in view of order passed on 15/9/2009. I have perused the application as well as the impugned order. The complaint tendered to the Court discloses that the 0707appln3422.09.odt 2/2 impugned transaction is entered into with the consent of her husband and that he was posted with the knowledge in respect of transaction. In the verification statement also the complainant has specifically stated that the impugned transaction was entered into by her through her husband and as such he is posted with knowledge. Considering these aspects, the trial Judge did not exercise discretion in favour of the applicant-accused. It is contended by the Counsel appearing for the accused that the complaint is presented by the lady Sau. Kanta and her statement on verification is also recorded and with a view to bring on record certain contradictions and omissions, her cross examination before the Court is essential. The complainant has tendered the document of power of attorney before the Court. The accused did not cross examine the complainant’s husband, who deposed on her behalf and tendered instant application. It is more than clear that the applicant-accused has not disclosed his defence as evidence of the complainant is not yet over. Considering these aspects of the matter, I am of the view that at this stage of proceedings, no interference is called for. However, the applicant-accused, if deemed necessary, may put forward his request at an appropriate stage and if the trial Court considers it appropriate, may summon the complainant for cross examination. It would be open for the Magistrate to pass an appropriate orders at appropriate stage, if deemed necessary. The criminal application stands rejected. JUDGE wwl