( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 869 OF 2009 Prakash Baburao Badgujar .. Petitioner Versus Dhule Urban Co-operative Bank Ltd. .. Respondent Shri N.B. Suryawanshi, Advocate for the petitioner. Shri Mukul Kulkarni, Advocate for the respondent. CORAM : P.R. BORKAR,J. DATED : 12.01.2010 P.C. :- 1. Heard Adv. Shri N.B. Suryawanshi for the petitioner and Adv. Shri Mukul Kulkarni for sole respondent. 2. Rule. Rule made returnable forthwith. With the consent of learned advocates appearing for the parties, the petition is heard finally at the stage of admission. 3. This is a writ petition filed by the original accused person being aggrieved by the dismissal of his application Exh.42 in S.T.C. No.773 of 2006 by the learned Judicial Magistrate, First Class (Court No.6), Dhule, by ( 2 ) order dated 27.07.2009 and also to set aside order of ‘no cross’ passed below Exh.1 on 06.01.2009. 4. It is clear from the documents before this Court that present respondent filed complaint against the petitioner for committing offence punishable under section 138 of the Negotiable Instruments Act. The complaint was filed on 08.02.2006. Thereafter, process was issued by order dated 08.02.2006. The accused appeared as per the summons. Respondent filed his affidavit in lieu of examination-in- chief on 03.07.2007 and inspite of repeated adjournments, the complainant was not cross-examined. Ultimately, on 06.01.2009 the complainant was present, but the accused and his advocate were absent, therefore, the Court passed order to proceed further without cross-examination of the complainant. Said order dated 06.01.2009 was attempted to be set aside by filing application Exh.42 on 27.07.2009. Therein, the applicant has said that it is necessary in the interest of justice and as a part of principle of natural justice, that the accused should get opportunity of cross- examining the complainant. The complainant was not likely to suffer any prejudice, if such permission is granted and ( 3 ) earlier order dated 06.01.2009 be set aside. Say of the complainant was obtained. The complainant stated that he filed affidavit in lieu of examination-in-chief on 03.07.2007, but there was no cross-examination for two years. The Court passed order of ‘no cross’ on 06.01.2009 and six months passed thereafter. This is nothing but protraction of the trial. Whatever documents the accused wanted to produce, they were already produced on record and therefore it was prayed to reject the application and to impose heavy cost. 5. Both the advocates argued in support of their own case. 6. While dismissing application Exh.42 on 27.07.2009 the Court has observed that it has no power to recall its own order and therefore the application was rejected. In my opinion, the Trial Court was under erroneous impression that he could not have set aside the order of ‘no cross’ recorded earlier. In-fact, it is modification of interim order and not a review and therefore the Court could have done it. No doubt, in this case as stated by the complainant in his say ( 4 ) on application Exh.42 that there is protraction of the Trial by the accused, but having considered totality of the circumstances, in my opinion, this petition can be allowed on heavy costs. 7. In the result, the writ petition is allowed. The order passed by the learned Magistrate below Exh.1 in S.T.C. No. 773 of 2006 on 06.01.2009, so also his order on application Exh.42 passed on 27.07.2009 are hereby set aside. The parties are directed to appear before the Trial Court on 03.02.2010. On that day, the advocate for the accused shall have opportunity to cross-examine the complainant. 8. Rule made absolute and the petition is accordingly disposed of. The petitioner to pay costs of Rs. 3000/- (Rupees Three Thousand Only) to the respondent as costs of this petition. The amount shall be deposited in the Trial Court on or before 03.02.2010. [P.R. BORKAR,J.] snk/2010/JAN10/crwp869.09