- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1599 OF 2008 WRIT PETITION NO.1599 OF 2008 WRIT PETITION NO.1599 OF 2008 Ramesh Ishwar Kadtare ...Petitioner vs. The State of Maharashtra & others ...Respondents Mr.R.R.Kalekar for the petitioner Mr.Y.S.Shinde A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : AUGUST 7,2008 : AUGUST 7,2008 : AUGUST 7,2008 P.C.: P.C.: P.C.: 1. Heard learned counsel for the petitioner. The petitioner is the accused in a complaint filed by the second respondent under section 138 of the Negotiable Instrument Act,1881. An application was filed by the petitioner before the learned Sessions Judge for transfer of the pending complaint on the ground of bias. Initially, the said application for transfer was rejected by the learned Sessions Judge by passing a cryptic order. This court remanded the said application to the learned Sessions Judge. By a Judgment and order dated 15th July 2008, the learned Sessions Judge has dismissed the application for transfer. 2. In the application for transfer filed before the Sessions Court, it is stated that there was an order passed by the learned Magistrate against the petitioner recording that no cross examination has been made by the petitioner. An - 2 - application was made by the petitioner for setting aside the said order which came to be rejected. A revision application was filed in the Sessions Court against the said order. The Sessions court allowed the said application in revision and directed the petitioner to remain present before the trial court on 1st March 2008. On 1st March 2008, an application for adjournment was submitted by the petitioner through his son on the ground that the petitioner was indisposed. The learned Judge directed that a warrant be issued against the petitioner. Thereafter, the petitioner engaged the services of new lawyers. On 17th March 2008, the case was adjourned till 28th March 2008. On that day, an application was made for grant of adjournment on the ground that one of two Advocates engaged by the petitioner was suffering from Chickenpox. The said application was rejected and the order of "no cross" was again passed by the learned Judge. Thereafter, the learned Judge proceeded to record the statement under section 313 of the Code of Criminal Procedure, 1973. An application was made on 31st March 2008 for setting aside the order of ‘no cross’. The said application was also rejected. It is alleged in the transfer application filed by the petitioner that though an application for adjournment was made on the ground of ill-health of the Advocate, the learned Judge disbelieved the statement of the Advocate and immediately passed an order of ‘No cross’. It is, therefore alleged that the learned Judge is biased against the - 3 - petitioner. 3. The submission of the learned counsel for the petitioner is that the manner in which the case proceeded before the court on 1st March 2008 and 31st March 2008 itself shows that there is a basis for allegation of the petitioner of bias. He submitted that the learned Judge went to the extent of rejecting the application for adjournment made on the ground that the Advocate newly appointed by the petitioner was suffering from Chickenpox. He submitted that the learned Judge not only rejected the said application but immediately proceeded to record the statement under section 313 of the said Code. The submission is that the approach of the learned Judge itself proves the bias and therefore, the learned Sessions Judge ought to have accepted the prayer for transfer. 4. I have considered the submissions. I have also perused the reasons recorded by the learned Sessions Judge. The allegation of bias made by the petitioner will have to be tested. The learned Sessions Judge has recorded in his Judgment as to how the petitioner proceeded in the matter of hearing of the complaint. The learned Judge has noted that on 28th May 2007, the original complainant filed an affidavit in lieu of examination in chief. The case was adjourned on 19th June 2007, 10th July 2007, 24th July 2007 and 10th August 2007. The Advocate for the Petitioner did not conduct the - 4 - cross examination of the complainant on the aforesaid dates and adjournments were sought. On 27th August 2007, the learned Judge passed an order of ‘No cross’. On 29th November 2007, an application was made by the petitioner for setting aside the said order of ‘no cross’. The said Application was allowed subject to payment of costs of Rs.200/-. The case was fixed for cross examination of the complainant on 16th December 2007. On that day the Advocate for the petitioner was absent and therefore, an order of ‘no cross’ was again passed. The said order was challenged by the petitioner by approaching the Sessions court. The application for transfer made by the petitioner itself discloses that the Sessions Court permitted the petitioner to cross examine the complainant and in fact the Sessions Judge directed the petitioner to remain present before the trial court on 1st March 2008. On 1st March 2008, the petitioner applied for adjournment on the ground of ill-health. On that day, the Advocate for the petitioner could have proceeded with the cross examination of the complainant but that was not done. The application for transfer itself discloses that the petitioner engaged services of two new lawyers in March 2008 and the case was fixed on 17th March 2008. On that day the case was adjourned till 28th March 2008 for cross examination of the complainant. It is pertinent to note that the application for transfer made by the petitioner, the petitioner has stated that he engaged services of two - 5 - Advocates. The application for adjournment made on 28th March 2008 was on the ground that one of two Advocates engaged by him was not keeping well. Nothing prevented the other advocate from proceeding with the cross examination. Though the affidavit in lieu of examination in chief was filed by the complainant on 20th May 2007, the cross examination could not proceed from 19th June 2007 till March 2008 for one reason or the other. If this background of the case is considered, it is impossible to come to the conclusion that the action of the learned trial Judge of rejecting the application for adjournment made on 28th March 2008 was improper or harsh. The mandate of law and the directions given by this court from time to time require that the cases under section 138 of the said Act of 1881 should be disposed of expeditiously. Considering the aforesaid background, no fault can be found with the learned trial Judge when he rejected the application for adjournment made on 31st March 2008. 5. Therefore, it is not possible to find fault with the order passed by the learned Sessions Judge by which the application for transfer was rejected. 6. Hence, there is no merit in the petition and the same is rejected. Rejection of this petition will not preclude the petitioner from filing the appropriate proceeding either before the trial court or before the appropriate court for - 6 - seeking permission to cross examine the second Respondent. JUDGE JUDGE JUDGE