1 Criminal Writ Petition No.829 of 2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.829 OF 2011 Rajendra S/o.Harishchandra Ratnaparkhe, Age-42 years, Occu-Business, R/o.M.S.Bidwe Engineering College, Near Samaj Kalyan Karmachari Colony, Barshi Road, Latur PETITIONER VERSUS Devidas S/o.Hariba Bansode, Age-67 years, Occu-Pensioner, R/o.Milind Nagar, Near Khadak Hanuman Mandir, Latur, Dist. Latur RESPONDENT Mr.S.P.Katneshwarkar, learned counsel for the petitioner. (CORAM : A.V.POTDAR, J.) DATE : 22/09/2011 PER COURT : 1. By the present writ petition under Article 227 of the Constitution of India, the petitioner is before this Court, questioning the correctness and legality of the order dated 02/09/2011 and also with a prayer to dismiss the complaint STC No.312/2009 and all proceedings initiated after 16/07/2011 in the said criminal case. 2. Heard learned counsel for the petitioner. It is alleged that the 2 Criminal Writ Petition No.829 of 2011 respondent herein had filed criminal complaint for an offence punishable u/s.138 of the N.I.Act in the Court of 7th J.M.F.C. Latur, which was numbered as STC No.312/2009. It further appears that after verification, process was issued against the petitioner and petitioner appeared in the said complaint. It further appears that on 31/07/2010, respondent herein had filed his affidavit of examination in chief at Exh.21. Then the matter was posted for cross examination of the complainant. For one or other reason, cross examination was not completed till 24/06/2011. It further appears that an application was moved on behalf of respondent/original complainant at Exh.41 on 24/06/2011 praying for adjournment on medical ground till 30/10/2011 wherein it is alleged that the respondent/original complainant have met with an accident and advised bed rest as his movements were restricted. Medical certificate was also annexed with the said application. Learned Lower Court pleased to reject that application and ordered that the matter is listed on 16/07/2011 and if on that day, complainant/respondent will not remain present in the Court, then the complaint will automatically dismissed for default. Accordingly, the matter was posted for cross examination on 16/07/2011. It appears that on that day, complainant was not present before the Court. The date was adjourned to 29/07/2011. It further appears that on 29/07/2011, an application was moved on behalf of the complainant to appoint court commissioner to record his cross examination which application was also turned down by the learned 3 Criminal Writ Petition No.829 of 2011 Lower Court. Thereafter the matter was posted on 18/08/2011. On that day, complainant was present before the Court. It appears that the petitioner was also present before the Court but he declined to cross examine the complainant/respondent herein. Hence “no cross examination” order was against the present petitioner. 3. Learned counsel for petitioner would urge across the bar that as the order was passed by the learned Lower Court while rejecting the application on 24/06/2011 that if the complainant will not appear in the Court on 16/07/2011, the complaint will be automatically dismissed and hence the complaint is appeared to be dismissed and prayed to close the further proceedings. Copy of the Roznama is annexed with, which clearly indicates that on 16/07/2011, order of dismissal of complaint was not passed by the Court below. Unless the order of dismissal will pass, the complaint will not be taken as dismissed in law and now the petitioner has approached this Court with a prayer that as the conditional order was passed, the complaint will automatically dismissed, it is unknown to the criminal law. Considering all these aspects, writ petition is liable to be rejected, but in the interest of justice, the order passed on 18/08/2011 of “no cross” of the respondent/original complainant is hereby quashed and set aside. 4. With this clarification, writ petition stands dismissed being sans any merit. However, order of “no cross” is set aside. It is 4 Criminal Writ Petition No.829 of 2011 informed that now the criminal complaint is scheduled on 23/09/2011. In view of this, petitioner to appear before the Lower Court on 23/09/2011. 5. Parties to act on the authenticated copy of this order. (A.V.POTDAR, J.) khs/SEPT.2011/cri.w.p.829-11 5 Criminal Writ Petition No.829 of 2011