Sri. Adam Ali vs Mohammed Noorulla Shariff

K.N. Keshavanarayana, J.—The complaint of the Petitioner in this petit on tiled u/s 482 Code of Criminal Procedure is that, in the prosecution launched against him by the Respondent for the offence punishable u/s 138 of the Negotiable Instruments Act (for short ''Act''), the trial Court has not afforded him reasonable opportunity to cross-examine the complainant, who was examined as PW.1. Therefore, he seeks for further opportunity to cross-examine PW.1 and also to lead defence evidence. However, perusal of the certified copy of the order sheet produced along with this petition speaks volumes about the conduct of this Petitioner. The complainant was examined as PW.1 in part on 24.12.2009 and his examination-in-chief was completed on 08.01.2010. From that day onwards, on the request of the accused or his counsel, the case was being adjourned from time to time for cross-examination of PW.1. On many hearing dates the accused remained absent, exemption applications were filed and they were allowed imposing cost starting from Rs. 150/- to Rs. 1,000/-. As the Petitioner-accused did not choose to cross-examine PW.1 for nearly one year, the learned Magistrate closed the cross-examination. However, on the next date of hearing when an application was filed u/s 311 Code of Criminal Procedure to recall PW.1, it came to be allowed again on cost of Rs. 500/-, but, PW.1 was not cross examined, as such, it was closed. However, later, on the application filed by the Petitioner accused u/s 311 of Code of Criminal Procedure, PW.1 was recalled and cross-examined on 08.02.2011 and from that day the case was adjourned to defence evidence by 15.02.2011. On 15.02.2011 the accused filed one more application u/s 311 of Code of Criminal Procedure for recalling PW.1 for the purpose of further cross-examination. The said application came to be dismissed with the cost of Rs. 500/- and again the case was adjourned for defence evidence on 24.02.2011, on which date, the accused did not lead any evidence, therefore, the defence evidence was closed and the case was adjourned for arguments on 28.02.2011. These narrations clearly indicate that the trial Court granted umpteen number of adjournments on the request of the accused and his counsel and in spite of such opportunities, the accused did not choose to cross-examine PW.1. Even after closing the cross-examination of PW.1, the request of the accused to recall PW.1 was acceded to and PW.1 was fully cross-examined. Under these circumstances, there is absolutely no substance in the complaint of the Petitioner that reasonable opportunity was not afforded to him to cross-examine PW.1. This is the case where the trial Court has granted more than required opportunities to the Petitioner. Therefore, it is not open for the Petitioner to complain want of opportunities. However, it is made clear that if the Petitioner makes out sufficient grounds for leading defence evidence, the learned Magistrate shall consider the said request on merits and proceed in accordance with law.

With the above observations, this petition is dismissed.