1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application (APL) No. 155/2011 Diwakar Dhondbaji Patne V/s. Ushakiran wd/o Arun Thute ----------------------------------------------------------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. ----------------------------------------------------------------------------------------------------------------------------------------------- Mr A. M. Dongaonkar, counsel for the applicant Mr. V. K. Paliwal, counsel for Respondent sole. Coram: A.P. Bhangale, J Dated: 11th July 2011 1. By means of this application, the applicant has prayed for permission to cross-examine the respondent (original complainant) in Summary Criminal Case No. 15031/2009 instituted for offence punishable under Section 138 of the Negotiable Instruments Act. 2. It appears that during the pendency of the Criminal Case, the accused had offered to compromise the dispute and praecipe was also filed before the learned Magistrate indicating that the matter is settled between the parties amicably and the accused shall pay half of the amount of cheque within one month and remaining amount within next subsequent month and on payment of the full amount of the cheque in this manner the complainant shall withdraw the present case forthwith. However, on 30/09/2010, the application was filed by the accused on the ground that the accused would pay the entire amount of the cheque and also made grievance that the liability of 2 cheque amount is incurred by some other person and the accused is made a scapegoat, thus the accused ran away from a statement made in praecipe and sought to cross-examine the complainant. The learned trial Magistrate by order dated 30/09/2010, rejected the application considering the fact that sufficient time was granted to the accused and also noted conduct of the accused to prolong the matter. Later on, despite rejection of the adjournment application, the advocate for the accused was called upon to cross-examine the complainant but he was not ready, and therefore, no cross order was passed on 30/09/2010 against accused. Later, the accused remained silent till 10/12/2010, when applied for setting aside no cross order passed against him on 30/09/2010 and again prayed for cross- examine the complainant. The application was rejected on 04/02/2011 on the ground that the accused is not attending Court regularly and his intention to prolong the matter by moving such type of application. 3. Under these circumstances, learned Advocate for the applicant stated that applicant will suffer irreparable loss and opportunity if he is denied to cross-examine the complainant. On the other hand, learned Advocate for the respondent objected the prayer on the ground and submitted that the accused had failed to comply with the compromise praecipe and sought adjournment and was only interested to prolong the hearing on merits in the trial Court and therefore he is not entitled for the relief as sought for. 3 4. I have considered the rival submissions in a Summary Criminal Case, parties are always expected to be ready for hearing in the Criminal Case particularly in a summary prosecution for an offence punishable under Section 138 of the Negotiable Instruments Act, such excuses for adjournments are usually deprecated, however, in the interest of justice the accused may be given an opportunity to contest the complaint by cross-examining the complainant and leading defence evidence if any, but, accused shall be ready and willing to proceed further in the complaint proceedings. With this conditions, I am inclined to allow the prayer of the applicant (original accused) to cross-examine the complainant subject to payment of cost of Rs. 5,000/- to be deposited as condition precedent in the Court of trial Magistrate before the complainant is allowed to be cross- examined. For all these reasons, the impugned order by the trial Magistrate rejecting permission to cross-examination is set aside as prayed for. The parties shall approach before the Judicial Magistrate, First Class, Nagpur on 30th July 2011 to deposit the amount of costs imposed and then the applicant shall be permitted to cross-examine the complainant. Amount deposited pursuant to this order be paid to the complainant. JUDGE Punde