1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION (APL) NO. 187 OF 2011 ANIL RAMLOCHANSINGH THAKUR ..VERSUS.. MURLIDHAR CHANDIRAM GYANCHANDANI Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. N. S. Deshpande, Advocate for the applicant. Mr. N. A. Vyawahare, Advocate for the Respondent-sole. CORAM : PRASANNA B. VARALE, J. DATED : 29 th AUGUST , 2011 . Heard Mr. N. S. Deshpande, the learned counsel for the applicant and Mr. N. A. Vyawahare, the learned counsel for the respondent-sole. By the present application, the applicant is challenging the order passed by the learned Additional Sessions Judge, Pusad, dated 14.12.2010 in Criminal Revision No. 02 of 2010. The uncontroverted facts of the case can be summarised as follows : The applicant is an accused in a Criminal Complaint Case No. 1100 of 2007 for the offence under Section 138 of the Negotiable Instruments Act. The applicant/accused had produced a list of witnesses in the matter. The learned Judicial Magistrate, First Class, Pusad, by the order dated 25.09.2009 below Exh.1 observed that inspite of giving sufficient opportunities, the defence failed to secure the presence of witnesses for cross- examination and hence, the defence of the accused was struck- 2 off and the matter proceeded further. The applicant then filed an application (Exh.86) before the learned Magistrate for setting aside the order dated 25.09.2009 passed below Exh.1 and for grant of permission to examine the witnesses. The learned Magistrate found favour with the applicant/accused only in respect of one witness namely Vishal Vishwakarma and by order dated 25.09.2009 granted permission to examine said witness Vishal. Thereafter, the applicant filed an application (Exh.87) seeking permission to examine the other witnesses also. The same was opposed by the complainant. The learned Magistrate, by order dated 25.11.2009 rejected the application (Exh.87) and being aggrieved by the said order, a Revision Application was filed before the Additional Sessions Judge, Pusad. The learned Revisional Court, by order dated 14.12.2010 observed that the learned Magistrate has not considered the fact that three witnesses were present on the day and their affidavits were also filed on record. The learned Revisional Court further observed that it was necessary to give a fair opportunity to the accused to adduce evidence of the witnesses, whose affidavits were already filed on record and the accused was deprived of that fair opportunity by rejecting the application (Exh.87) by order dated 25.11.2009. The learned Revisional Court, in the interest of justice, thought it fit to permit the accused to examine those witnesses whose affidavits were already filed on record. The said order further makes it clear that both the parties to cooperate the trial Court in expeditiously deciding the trial and they were directed to appear before the Trial Court on 24.12.2010. The said order dated 14.12.2010 is impugned in the present application. 3 Mr. Deshpande, the learned counsel for the applicant submitted that the applicant/accused wanted to examine certain more witnesses. These witnesses are mainly the bank officials. He further submitted that though the Revisional Court permitted to examine the witnesses, whose presence was stated by filing the affidavits, a request for examining other witnesses was turned down. The learned counsel for the applicant submitted that by giving permission to examine these witnesses would cause no prejudice to the complainant/non-applicant. Mr. Vyawahare, the learned counsel for the non- applicant/complainant, by inviting my attention to the order passed by the learned Revisional Court, submitted that the complaint is of the year 2007 and the matter, which is expected to be disposed of much earlier as a summary matter, is still pending before the Court. The learned counsel for the non-applicant, by taking support of the order of the Revisional Court, further submitted that the Revisional Court has properly appreciated the facts of the matter and in the interest justice, permitted the applicant/accused to examine the witnesses, whose affidavits were already filed. The learned counsel for the non-applicant further submitted that though, it was the duty of the applicant/ accused to see that the witness remains present on the date, the applicant/accused utterly failed in his duty. Even perusal of the application (Exh.86) would show that witness Vishal Vishwakarma, was stated to be present before the Court and when he was called, he found left the Court. The learned counsel submitted that, in such a situation, it cannot be stated that the applicant/accused is diligently prosecuting the matter. He, therefore, prayed for rejection of the application. 4 After giving anxious consideration to the submissions of the learned counsel appearing for the respective parties as well as perusal of the order passed by the learned Revisional Court, I am of the opinion that the order passed by the learned Revisional Court is just and proper. No illegality or perversity is committed by the learned Revisional Court. It may be rather stated that the Revisional Court has dealt with the matter with liberal consideration. It is not in dispute that the complaint case is of the year 2007 and still pending for its disposal. The learned Revisional Court on consideration of the material found that the examination of the witness, who was present and when the matter was called out left the Court due to some unavoidable circumstances, was also allowed. As such, the learned Revisional Court committed no wrong by observing that in view of natural justice, the applicant was entitled for fair opportunity. I find no merit in the application and the application deserves to be rejected. In the result, the criminal application is rejected. JUDGE Diwale