Kishor Rameshchandra Mundada vs Shakil Ahmed Akil Ali

A.I.S. Cheema, J.—Heard counsel for both sides finally at admission stage. Counsel for applicant in these matters is submitting that, these are matters arising out of complaint u/s 138 of the Negotiable Instruments Act. The applicant- petitioner is original complainant. The petitioner had moved the trial Court to recall the complainant, which was allowed. The revision applications filed by the respondent- accused were rejected. The petitions filed also were rejected by this Court. However, for reasons recorded by this Court, the complainant was directed to pay costs of Rs.3000/- in each of the matter. The counsel submitted that, there was delay of two weeks in paying the costs in the trial Court.

The reason, according to the learned counsel is that, the trial Court did not directly accept the costs and had asked the petitioner to get certified copy of the order and hence there was delay. The counsel submitted that, subsequently, the trial Court has passed the impugned order below Exhibits 1 and 109 in S.C.C. No. 770/2007 and Exhibits 1 and 104 in S.C.C. No. 771/2007 on the same day of 15.1.2014 and rejected the applications to deposit the amount and declined the opportunity to complainant to recall and re- examine the complainant''s witness. It is argued that, when the High Court has maintained the order of recall of witness, the Magistrate could not have passed the order to reverse the earlier decision.

Counsel for respondent- accused opposed the application. According to the learned counsel for respondent- accused in both these matters, the costs were purposely not deposited in time to delay the matter. The submission is that, without setting aside the order of the trial Court the costs cannot be deposited. The learned counsel submitted that the copy of the impugned order filed on the records is incomplete. The say which was given on the applications is not reflecting in Cri. Appln. No. 964/2014 the copy. Counsel for applicant in both the matters submits that, due to clerical error, while filing copy of the impugned order, the say which was behind the application concerned, remained to be copied. The counsel expressed regret. He submits that, he has the certified copies and he is filing the same. The certified copy of the impugned orders in both the matters be taken on record.

Learned counsel for respondent- accused submitted that the accused had filed say opposing the application and to deposit the costs which were directed. The respondents disputed the averments made in the application to deposit costs. The submission of the learned counsel is that, the applicant in both the matters had knowledge of the order passed, but still they delayed payment and there is no justification for the delay. According to the learned counsel, the grounds raised in the present petition to permit to deposit the costs are not justified. It has been submitted that the applications need to be rejected.

Going through the matters, and the orders passed by this Court in Criminal Writ Petition Nos. 358/2013 and 362/2013, what I find is that the said writ petitions were rejected. The outcome was not subject to payment of costs, but in the facts and circumstances of the matter this Court had Cri. Appln. No. 964/2014 directed payment of costs by the complainant to the accused. Of course, direction was to pay the costs within a period of two weeks. Till payment of costs, the witness could not be recalled. But, this does not mean that if the cost was not paid within time, the outcome of the petition would change. It is different when the Court says that petition is allowed subject to payment of costs. This was not the case in the present matter and the order of the trial Court reversing what was maintained till the Writ Petition was not permissible, only because the costs were not paid. Looking to the order, if the costs were not paid, it would be matter of recovery or giving time to seek extension of time, but under order as passed by the trial Court could not have been passed.

For the reasons mentioned above, the present applications are allowed. Impugned order passed in the matters are set aside. The applicants are directed to now deposit costs as were directed in Criminal Writ Petition Nos. 358/2013 and 362/2013, in the trial Court.