1 Cri. W.P No.1062 of 2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1062 OF 2009 Aarti W/o.Pramod Sapkale, Age-40 years, Occu-Service, R/o.Palesha College, Near Shivtirth Kalyan Bhavan, Dhule, Tq. Dist. Dhule PETITIONER VERSUS 1.The State of Maharashtra 2. Vijay S/o.Titus Kuberji, Age-52 years, Occu-Business, R/o.Mission Compound, Moglai, Dhule RESPONDENTS Mr.D.B.Shinde h/f. Mr.N.L.Choudhari, learned counsel for the petitioner. Mr.G.R.Ingole, learned A.P.P. for respondent State. Mrs.S.T.Kazi, learned counsel for respondent no.2. (CORAM : A.V.POTDAR, J.) DATE : 25/03/2011 ORAL JUDGMENT : 1. By the present writ petition under Article 226 and 227 of The Constitution of India r/w. 482 of The Cr.P.C., the petitioner/original accused in STC No.3175/2006 has approached this Court with a prayer to quash and set aside the order passed below Exh.44 and 45, passed by the learned J.M.F.C. Dhule in STC No.3175/2006 dated 21/01/2009, and also the order passed by the learned Ad-hoc Additional Sessions Judge, Dhule in Criminal Revision Appl. No.32/2009 dated 21/07/2009 2 Cri. W.P No.1062 of 2009 confirming the order passed by the Trial Court. 2. Rule. Rule returnable forthwith. By consent of the parties, heard finally at the stage of admission. 3. It is not under dispute that the respondent no.2 herein has filed complaint u/s. 138 of The N.I. Act against the present petitioner numbered as STC No.3175/2006. In the said STC No.3175/2006, evidence of respondent no.2 was over, and thereafter the statement of the petitioner was recorded u/s. 313 of The Cr.P.C. It further appears that thereafter the petitioner herein has filed applications at Exh.44 and 45, requesting the Trial Court to allow him to produce certain documents in his defence. It appears that the only order was passed below these 2 applications is ‘rejected’. 4. Being aggrieved by the said orders passed by the learned Magistrate in said STC No.3175/2006, petitioner filed criminal revision no.32/2009 before the learned Ad-hoc Additional Sessions Judge, Dhule, which was dismissed vide its judgment and order dated 21/07/2009 only on the ground that these applications were filed by the petitioner to protract the trial and since number of opportunities were given to the petitioner to lead the evidence, petitioner has not lead the evidence. These observations of the learned Ad-hoc Additional Sessions Judge, Dhule do not find place in the order passed by the learned Trial Magistrate while rejecting the applications at Exh.44 and 45. If it is not observed by the learned Trial Magistrate that as number of opportunities were given to the petitioner which he has not availed as 3 Cri. W.P No.1062 of 2009 well as application was rejected in absence of such observations, then it is nothing but denying an opportunity to the petitioner/accused to put his defence, which is not permissible in Law. Only on this ground, petition succeeds. The order impugned passed in Cri.Rev.Appl.no. 32/2009 is liable to be quashed and set aside by allowing the applications at Exh.44 and 45 before the learned Trial Court. 5. At this juncture, learned counsel Mrs.Kazi submitted that as these applications are allowed, there is every likelihood that the petitioner may take disadvantage of this order and will protract the trial. The interest of the respondent no.2 can be protected by giving directions to the learned Trial Court to allow the petitioner to lead the defence evidence within 1 months from the date of receipt of this order, and to record the defence evidence whatever it may be, within the stipulated period of one month, and then to dispose of the trial in accordance of Law. 6. Rule made absolute as indicated above 7. Writ petition stands disposed of accordingly. No order as to costs. (A.V.POTDAR, J.) khs/MAR. 2011/cri.w.p.1062-09