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2018 DIGILAW 365 (RAJ)

Mohan Bhai Bhalla Bhai Boi v. State of Rajasthan

2018-01-30

P.K. LOHRA

body2018
JUDGMENT Mr. P.K. Lohra, J. - Accused-petititoner has preferred this misc. petition under Section 482 Cr.P.C., 1973 to assail impugned orders dated 03.03.2017 and 24.06.2017, passed by Civil Judge and Metropolitan Magistrate No.9, Jodhpur (for short, 'learned trial Court). The learned trial Court in a complaint case under section 138 of the Negotiable Instruments Act has closed right of accused-petitioner to cross-examine the complainant on 03.03.2017. Later on, at the behest of petitioner an endeavor was made for reconsidering his prayer to permit him to cross-examine the complainant, but the same was also turned down by the learned trial Court on 24.06.2017. The learned trial Court, while rejecting the prayer of petitioner, has observed that the complainant appeared on eight occasions but was not cross-examined by counsel for the petitioner on one pretext or other. It is in that background, learned trial Court has declined to exercise discretion in favour of the petitioner. 2. I have considered the submissions made at the Bar and also examined the alleged criminal delinquency of the petitioner, which is for offence under section 138 of the Negotiable Instruments Act. 3. True it is, that it is the right of an accused to cross-examine complainant, but in the instant case accused has remained dormant for a considerable period despite appearance of the complainant, as such, the Court cannot excuse his deliberate omission, however, in exercise of inherent powers this Court can upset the order impugned for doing real and substantial justice in the matter for the administration of which alone Courts exist. 4. Doing real and substantial justice is qua both the parties and not qua accused person alone, and therefore, in the backdrop of peculiar facts and circumstances of the case, for serious ommission and commissions of the accused-petitioner, it is desirable to impose some cost so as to compensate the complainant. 5. In view thereof, the instant misc. petition is allowed, both the impugned orders are set aside and accused-petitioner is permitted to cross-examine complainant on the ensuing date of hearing before learned trial Court, i.e., 06.02.2018, positively, subject to payment of Rs. 15,000/-. Out of cost of Rs. 15,000/-, petitioner has to deposit 50% amount with the Legal Services Authority and the remaining 50% to be paid to the respondent - complainant.