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2022 DIGILAW 661 (BOM)

Mahesh Kumar Toshniwal v. Sai Ganesh Sealines

2022-03-08

MANISH PITALE

body2022
JUDGMENT 1. By this Writ Petition, the petitioner (original accused) has challenged orders, passed by the Judicial Magistrate First Class, 'A' Court, Vasco (hereinafter referred to as the Magistrate) and the Additional Sessions Judge at Margao. 2. By the impugned order dtd. 17/11/2018, the Magistrate dismissed an Application (Exhibit-34), filed on behalf of the petitioner under Sec. 311 of the Cr.P.C., seeking to recall the complainant i.e. the respondent for further cross examination. The said Application was filed in the backdrop that on 27/3/2018, the Magistrate recorded that while the complainant and its Advocate were present in Court, further time was being sought on behalf of the accused i.e. the petitioner for cross examining the complainant. The request was rejected and the cross examination was closed. The petitioner contended in the said Application before the Magistrate that since there was a change in Advocates, further time was sought. It was contended that the Magistrate took a harsh view while passing the order closing the cross examination and in the interest of justice, opportunity ought to have been granted to the petitioner. 3. By order dtd. 17/11/2018, the Magistrate refused to accept the contentions raised on behalf of the petitioner and dismissed the Application. Aggrieved by the said order, the petitioner was advised to file a Revision Application before the Sessions Court. By the impugned judgment and order dtd. 18/3/2020, the Court of Additional Sessions Judge dismissed the Revision Application as not maintainable on the ground that the order made subject matter of challenge was an interlocutory order. 4. When this Petition was called out for hearing, the learned Counsel for the petitioner pressed challenge on behalf of the petitioner against the order dtd. 17/11/2018, passed by the Magistrate, whereby the Application for recalling the complainant for cross examination was dismissed. Challenge against the order dtd. 18/3/2020, passed by the Additional Sessions Judge, dismissing the Revision Application was not pressed seriously. 5. Mr. Agni, learned Counsel appearing for the petitioner, submitted that after the complaint was filed under Sec. 138 of the Negotiable Instruments Act, 1881, in the year 2017, there were attempts made by the parties to settle the dispute. The matter was referred to Lok Adalat, but despite efforts before the Lok Adalat, the settlement could not be worked out. Mr. Agni, learned Counsel appearing for the petitioner, submitted that after the complaint was filed under Sec. 138 of the Negotiable Instruments Act, 1881, in the year 2017, there were attempts made by the parties to settle the dispute. The matter was referred to Lok Adalat, but despite efforts before the Lok Adalat, the settlement could not be worked out. It is in this backdrop that the complaint filed by the respondent had to be taken up for further consideration by the Magistrate. In the interregnum, the petitioner was constrained to change his Advocate and, on this ground, only one adjournment was sought, but the Magistrate took a harsh view in the matter and on 27/3/2018, closed the cross examination of the complainant. 6. It was submitted that the Magistrate was not justified in taking such a harsh view in the matter and that if the impugned order dtd. 17/11/2018 is not recalled, the petitioner will suffer grave prejudice. 7. On the other hand, Mr. Sardessai, learned Counsel appearing for the respondent vehemently opposed the contentions raised on behalf of the petitioner. It was submitted that the complaint filed before the Magistrate concerns dishonour of two cheques worth 12 lakhs in total. The petitioner had Rs. given the said cheques towards consideration for sale of scrap of a barge and that the complaint involved the aforesaid huge amount of liability on the petitioner. It was submitted that the Magistrate was justified in passing the impugned order dtd. 17/11/2018, as no ground was made out in the matter for recalling the complainant for cross examination. It was submitted that the matter is still pending before the Magistrate and the petitioner has put the respondent to unnecessary inconvenience. 8. This Court has perused the material on record and heard the learned Counsel for the rival parties. A perusal of the impugned order dtd. 17/11/2018, shows that the Magistrate did notice the fact that the parties were before the Lok Adalat and attempts were made to settle the dispute. It was also recorded that there was a change of Advocates representing the petitioner, but the Magistrate found that the said reasons were not enough to conclude that the adjournments sought on behalf of the petitioner were bonafide. In fact, a finding was recorded that the petitioner (original accused) had adopted a lethargic approach in the matter. 9. It was also recorded that there was a change of Advocates representing the petitioner, but the Magistrate found that the said reasons were not enough to conclude that the adjournments sought on behalf of the petitioner were bonafide. In fact, a finding was recorded that the petitioner (original accused) had adopted a lethargic approach in the matter. 9. The material on record shows that the respondent has filed the complaint for dishonour of cheques amounting to 12 lakhs. Rs. The complaint was filed in the year 2017 and even if certain time period was consumed due to attempts made to settle the dispute before the Lok Adalat, considerable time has been consumed and the Magistrate is still at the stage of examination of the complainant. It appears that number of Applications have been filed on behalf of the petitioner for placing additional documents on record and the proceedings in the complaint have not proceeded beyond the stage when the impugned order was passed, way back on 17/11/2018. In the interregnum, due to COVID-19 pandemic, the proceedings were hampered. But, the grave inconvenience caused to the complainant cannot be ignored. At the same time, if the impugned order is allowed to stand, there is no doubt about the fact that the petitioner will suffer great loss, including his defence being hampered substantially. 10. In view of the above, this Court is of the opinion that an opportunity can be granted to the petitioner to further cross examine the complainant. But, the same can be granted only on the condition that the petitioner compensates the respondent for the inconvenience suffered due to the adjournments sought on behalf of the petitioner. A suitable direction for expeditious disposal of the complaint before the Magistrate is warranted in the facts and circumstances of the present case. 11. In view of the above, the Writ Petition is allowed. The impugned order dtd. 17/11/2018 is quashed and set aside. Consequently, the Application filed on behalf of the petitioner at Exhibit-34 under Sec. 311 of the Cr.P.C. is allowed in terms of the prayer made therein. This would have the effect of annulling the order dtd. 27/3/2018, recorded in the Roznama to the effect that cross examination of the complainant stood closed. The petitioner will now have an opportunity to further cross examine the complainant. This would have the effect of annulling the order dtd. 27/3/2018, recorded in the Roznama to the effect that cross examination of the complainant stood closed. The petitioner will now have an opportunity to further cross examine the complainant. At the same time, the petitioner as well as the respondent are directed to co-operate with the Magistrate for expeditious disposal of the complaint. 12. The Writ Petition is being allowed on the condition that the petitioner pays to the respondent, within a period of four weeks from today, an amount of 50,000/- towards costs. It is Rs. made clear that the Magistrate shall permit further cross examination of the complainant only upon the petitioner furnishing proof of such payment of costs of 50,000/- to the Rs. respondent within the stipulated period of time. If, for any reason, the respondent refuses to accept the costs from the petitioner, the petitioner shall immediately deposit the said amount of 50,000/- before the Magistrate, within the aforesaid Rs. period of four weeks, upon which, the respondent shall be at liberty to withdraw the said amount forthwith. Needless to say, if the petitioner fails to pay/deposit the said amount of costs within the stipulated period of time, the order passed today by this Court shall stand recalled without further reference to Court. 13. The Magistrate is further directed to dispose of the complaint as expeditiously as possible and in any case, within a period of four months from today. 14. The Writ Petition is disposed of.