1 IN THE HIGH COURT OF JUDICATUE AT BOMBAY CRIMNAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 864 OF 2010 IN CRIMINAL CASE NO.3277/SS/2007 Hasmukhlal A. Shah .... Petitioner vs. Canara Bank & Ors. .... Respondents. WITH CRIMINAL WRIT PETITION NO. 865 OF 2010 IN CRIMINAL CASE NO.3279/SS/2007 Jitendra A. Shah .... Petitioner vs. Canara Bank & Ors. .... Respondents. WITH CRIMINAL WRIT PETITION NO. 866 OF 2010 IN CRIMINAL CASE NO.3282/SS/2007 Neha R. Shah .... Petitioner vs. Canara Bank & Ors. .... Respondents. 2 WITH CRIMINAL WRIT PETITION NO. 867 OF 2010 IN CRIMINAL CASE NO.3278/SS/2007 Neela Hasmukhlal Shah .... Petitioner vs. Canara Bank & Ors. .... Respondents. WITH CRIMINAL WRIT PETITION NO. 868 OF 2010 IN CRIMINAL CASE NO.3281/SS/2007 Rajesh A. Shah .... Petitioner vs. Canara Bank & Ors. .... Respondents. WITH CRIMINAL WRIT PETITION NO. 869 OF 2010 IN CRIMINAL CASE NO.3280/SS/2007 Bhavna Jitendra Shah .... Petitioner vs. 3 Canara Bank & Ors. .... Respondents. Mr. V.M. Bhate, Advocate for petitioners. Ms. P.R. Mala i/by M/s M.V. Kini and Co. for respondent no.1. Mrs. V.R. Bhosale, APP for State. CORAM : Smt. R.P. SondurBaldota, J. DATE : 13th July 2011 PC.: 1. These writ petitions challenge two orders passed by the Court of 13th Metropolitan Magistrate Court, Dadar, Mumbai on two separate applications in CC No.3277/SS/2007. The first order is on the application filed by the petitioners for recording of separate cross-examination in six proceedings filed in the proceedings under Section 138 Negotiable Instruments Act and the second order is on the application for bail of the accused dated 16th February 2010. Both the orders being completely different, the petitioners could not have included the challenge thereto in the same petition. In any case, as can be demonstrated hereinafter, even on merits, there is no substance in the petitions. 4 2. The petitioners are accused in the six proceedings filed by respondent no.1- Bank under Section 138 Negotiable Instruments Act being CC 3277/SS/2007, CC 3278/SS/2007, CC 3279/SS/2007, CC 3280/SS/2007, CC 3281/SS/2007 and 3282/SS/2007. The accused in all the proceedings belong to the same family and are represented through the same lawyer. The complainant filed his affidavit in lieu of examination-in-chief in all cases. On that day, the accused persons were absent. But their advocate moved an application for adjournment on their behalf, which was granted. On the next day, there was a joint application by the applicant and the accused for an adjournment, which came to be granted. Thereafter the matter was adjourned on the ground of settlement till 17th January 2011. On the adjourned date, accused were again absent and their advocate moved an application for adjournment along with her request for exemption. The adjournment application was rejected. The application for exemption was allowed subject to the condition that the cross-examination of the complainant shall be conducted in the absence of accused. Accordingly on that 5 date, the complainant s cross-examination was taken in CC ’ NO.3277/SS/2007 and the same was adopted by the learned Advocate in the other cases. Then the complainant filed pursis closing its evidence. The advocate for the petitioners, did not record any objection on the pursis or expressed any wish to further cross examine the complainant separately in each complaint. Thereafter the accused continued to remain absent and their advocate went on taking adjournments for almost a year. The Court finally issued warrants against the accused on the application of the complainant. 3. On service of the warrant, all the petitioners appeared before the learned Magistrate and the petitioners for the first time complained that they had not moved any application for recording common cross-examination and requested for recalling of the complainant for fresh and separate cross- examination. The learned trial Judge noted that there was no challenge to the order passed by the court treating the cross-examination as common to all the cases, but there was only an application under Section 311 Cr.P.C. for recalling of the witness. Despite these observations, the trial Court gave 6 concession to the petitioners to further cross-examine the complainant subject to the costs of Rs.2,000/- to be paid to the complainant. This concession was granted only to ensure that no prejudice was caused to the petitioners on account of their absence at the time of the cross-examination. Considering the above facts, no fault can be found with the order. If at all the petitioners are aggrieved by the earlier order of the trial Court recording, at the instance of the Advocate for the petitioners, that the cross-examination shall be treated as common in all cases, it was necessary for petitioners to challenge the same by filing appropriate proceedings. Thus the challenge to the first order is meritless. The second order is passed on the application for bail moved by the accused, upon their arrest on issuance of warrants by the court. While granting bail, the trial court forfeited the earlier cash security to the extent of Rs.2,000/- and directed the petitioners to furnish fresh personal bond of Rs.13,000/-. These directions were given in view of the diletary tactics adopted by the petitioners. The directions 7 therefore are completely justified. The petitions are dismissed in limine. (Smt. R.P. SondurBaldota, J.)