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2022 DIGILAW 223 (BOM)

E. K. Joshi v. Antonio De Souza S/O Late Shri Schubert De Souza

2022-01-21

M.S.SONAK

body2022
JUDGMENT: 1. Heard Mr. Ryan Menezes holding for Mr. Gaurish Agni for the petitioner and Mr. Vibhav Amonkar for the respondent. Rule. The rule is made returnable forthwith at the request of and with the consent of the learned counsel for the parties. 2. The challenge in this petition is to the order dated 06.04.2021 by which the learned JMFC has declined to grant any further opportunity to the petitioner to cross-examine the complainant. 3. Now if the record, including in particular the Roznama is perused, it is evident that more than sufficient opportunities were granted to the petitioner. Since the petitioner refused to avail of such opportunities, even NBW had to be issued to secure the presence of the petitioner. Therefore, there is no error as such in the impugned order. 4. However, Mr. Menezes points out that hereafter, the petitioner will proceed with the matter with diligence and not seek any unnecessary adjournments should an additional opportunity be granted. Mr. Menezes points out that it was basically on account of the pandemic that the petitioner could not attend the matter with the required degree of diligence. 5. Having regard to the submissions made, an additional opportunity can be granted to the petitioner subject no doubt to payment of costs. Such costs are necessary because the record indicates the number of times the matter had to be adjourned on account of the non-cooperation of the petitioner. The matter was posted for record of Section 313 statement and even then, the petitioner failed to remain present. 6. Thus, subject to the petitioner depositing before the Trial Court costs of Rs.25,000/-on or before 11.02.2022, the impugned order dated 06.04.2021 stands set aside. If, however, the costs are not deposited by 11.02.2022, then, this petition shall be deemed to have been dismissed with costs of Rs.10,000/-which the Trial Court shall recover from the petitioner. 7. The costs, if deposited, should be paid to the respondent at the earliest. 8. Mr. Menezes, on instructions, makes a statement that the petitioner will appear on the next date to be fixed by the Trial Court either himself or through his counsel and proceed with the cross-examination. The statement is hereby accepted. 7. The costs, if deposited, should be paid to the respondent at the earliest. 8. Mr. Menezes, on instructions, makes a statement that the petitioner will appear on the next date to be fixed by the Trial Court either himself or through his counsel and proceed with the cross-examination. The statement is hereby accepted. If the petitioner, seeks unnecessary adjournments or fails to cooperate with the Trial Court in the disposal of the matter then, it is open to the Trial Court to make such orders as may be necessary without extending any undue indulgence to the petitioner. 9. The Trial Court is also directed to dispose of Criminal Case No.OA/892/NIA/2018/E as expeditiously as possible and in any case within five months from today. 10. The Rule is made absolute in this petition in the aforesaid terms. There shall be no order for costs.