K. Kadrivel vs M. Mohan

K.N. Keshavanarayana, J.—In this petition filed u/s 482 Cr.P.C. petitioner has sought for setting aside the order dated 02.05.2013 passed in CC No. 39042/2010 by the XVI Addl. Chief Metropolitan Magistrate, Bangalore rejecting the application filed u/s 311 Cr.P.C. and refusing to recall PW1 for cross examination. Petitioner is being prosecuted for the offence punishable u/s 138 of Cr.P.C. PW1 was examined in chief on 09.05.2011. On the request of the counsel appearing for the petitioner-accused the cross examination of PW1 was being adjourned from time to time up to 28.10.2011. Since on that day the cross examination was not proceeded with the cross examination was taken as nil.

On the subsequent date of hearing application u/s 311 of Cr.P.C. came to be filed which came to be allowed. However, PW1 was not cross examined in spite of grant of couple of adjournments. Once again cross examination of PW1 was closed. Similar application u/s 311 of Cr.P.C., second in the series was filed and that came to be allowed, however, PW1 was not cross examined. Once again the cross examination was closed.

This was repeated time and again and four applications filed u/s 311 of Cr.P.C. came to be rejected and the petitioner was afford umpteen number of opportunities to proceed with the cross examination. However, the petitioner failed to avail all those opportunities. Ultimately on 20.02.2013 the cross examination of PW1 was closed. Thereafter 5th application u/s 311 of Cr.P.C. came to be filed on 18.04.2013, which was dismissed by the order impugned in this petition.

The learned Magistrate having regard to the conduct of the petitioner and the dilatory tactics adopted by him in dragging on the matter for nearly two years, dismissed the application.

Having gone through the contents of the impugned order and having heard the learned counsel for petitioner, I am of the opinion that there are no justifiable grounds to entertain this petition.

The provisions of subsection (3) of Section 143 of the Act prescribes that every trial for the offence punishable u/s 138 of the Act shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint.

In the case on hand, though PW1 was examined in chief on 09.05.2011, the petitioner-accused managed to drag on the matter for two years by filing applications u/s 311 of Cr.P.C. repeatedly and asking for opportunities. Looking at the manner in which the trial court has granted adjournments, it is clear that the trial court was highly liberal in granting the adjournments on the request of the petitioner-accused. More than sufficient opportunities had been afforded to the petitioner to complete the cross examination of PW1. However, petitioner without availing such opportunities, managed to drag on the matter. Therefore, the petitioner cannot contend that there is lack of opportunities.

Having regard to the facts and circumstances of the case and the manner in which the number of adjournments have been granted at the instance of the petitioner-accused, I am of the opinion that the petitioner is not entitled to any more opportunity at the hands of the court. In this view of the matter, there is no merit in this petition. Therefore, the petition is rejected.