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Madhya Pradesh High Court · body

2019 DIGILAW 516 (MP)

Omprakash Bhargava v. Hotam Singh Kushwah

2019-07-12

VISHAL MISHRA

body2019
ORDER : 1. Present petition is being filed under Section 482 of the Cr.P.C. for quashing of the order dated 4.6.2019 passed by JMFC First Class, Gwalior in Cr. Gase No. 11702 of 2015 by which, application filed by the petitioner seeking adjournment for cross-examination has wrongly been rejected. 2. It is submitted by counsel for the petitioner that owing to a complaint under Section 138 of the Negotiable Instruments Act, the case was fixed for cross-examination of complainant on 4.6.2019 and on that date, an application was filed for seeking adjournment on account of non-availability of H.M. Singh who was representing the petitioner before learned trial court. Trial court rejected the application vide impugned order dated 4.6.2019 and has closed the right of the petitioner for conducting cross-examination of the complainant. 3. It is submitted that learned trial court has not considered the provisions of Section 309 sub-section (2) IVth Proviso clause (c) of Cr.P.C. 1973. It is submitted that it is a valuable right of the petitioner for cross-examination and he submits that one opportunity to cross-examine should be granted to him. 4. Heard learned counsel for the petitioner and perused the documents appended thereto. 5. From the record, it is seen that the case was fixed for complainant's evidence on 7.10.2016. On 25.1.2017, the complainant was available for evidence but time was sought by the accused and on 28.4.2017, the evidence could not be recorded. On 9.8.2017, due to absence of accused, arrest warrant was issued and due to continuous absence of the accused, perpetual arrest warrant was issued and in pursuance of the same, he was arrested on 19.5.2019 and thereafter, again the matter was placed for complainant's evidence. On 8.3.2019, the complainant was available but evidence could not be recorded. On 10.5.2019, time was granted for all the accused subject to payment of cost of Rs. 1000/- and it was observed this is last opportunity being granted to him. The reason for non-examination of the witness was that the counsel who is dealing with the case is not available, therefore, an application was filed seeking one time for cross-examination of the complainant. Learned trial court after considering previous order sheets, reached to the conclusion that the application is being filed just to delay the proceedings. The reason for non-examination of the witness was that the counsel who is dealing with the case is not available, therefore, an application was filed seeking one time for cross-examination of the complainant. Learned trial court after considering previous order sheets, reached to the conclusion that the application is being filed just to delay the proceedings. Section 309 sub-section (2) Proviso IV (Ga) reads as under: “309(2)(c) - where a witness is present in court but a party or his pleader is not present or the party or his pleader though present in court, is not ready to examine or cross-examine the witness, the court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.” 6. Learned trial court rejected the application and closed the right of accused for cross-examination. 7. Learned counsel appearing for the petitioner has submitted that one opportunity to cross-examine may be granted to him subject to payment of cost and a date may be fixed before the trial and he will conclude the cross-examination on that very date. 8. Considering the aforesaid prayer of the petitioner and the fact that cross-examination being valuable right of the accused, this court deems fit to grant one opportunity of cross-examination of the complainant subject to payment of cost of Rs. 5,000/- to be deposited with the Legal Aid Authority in addition to the earlier one of Rs. 1,000/- which was imposed by learned trial court. Petitioner is directed to appear before the trial court on 25.7.2019 subject to payment of aforesaid cost. Learned trial court will permit him for cross-examination. In case, he fails to cross-examine on the aforesaid date, no further time will be granted by the trial court for cross-examination. 9. With the aforesaid, the order impugned dated 4.6.2019 is modified to the extent that as a matter of last indulgence, an opportunity is granted to the petitioner to cross-examine the complainant. 10. This petition stands disposed of with no order as to the costs.