Monday, 9 November 2015

Whether court can close cross examination of accused while granting him personal exemption?

On hearing the learned Counsel for the parties, it
appears that it was only on 18/12/2014 that the further crossexamination
of the petitioner was deferred. It is a common ground
that the further cross-examination was deferred as the Court time
was over and it was fixed on 08/01/2015. On that day, the
petitioner had sought exemption which was granted. However,
the evidence was closed. The impugned order shows that what
weighed the Magistrate is that the application was not supported
with Medical Certificate. 
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO. 5 OF 2015
M/s. Ambaal Holdings

Versus
Pyramid Finance Private Limited

CORAM :- C. V. BHADANG, J.
Date : 23rd March , 2015.
Citation;2015 ALLMR(CRI)3666 Bom

2. The learned Counsel for the respondent waives notice
on behalf of the respondent.
3. Heard finally, with the consent of the learned Counsel
for the parties.
4. The petitioner is the original accused in a complaint
filed by the respondent under Section 138 of the Negotiable
Instruments Act, 1881 (the Act, for short). After the respondent/
complainant had closed his side, the petitioner had entered into
the witness box on 18/12/2014 and his cross-examination was
partly recorded. The matter was, thereafter, adjourned to
08/01/2015 for further cross-examination. On that day, an
application came to be filed on behalf of the petitioner for
exemption. The learned Magistrate, by order of the even date,
while granting the exemption, had proceeded to close the evidence
of the petitioner. Feeling aggrieved, the petitioner has
approached this Court.
5. On hearing the learned Counsel for the parties, it
appears that it was only on 18/12/2014 that the further crossexamination
of the petitioner was deferred. It is a common ground
that the further cross-examination was deferred as the Court time
was over and it was fixed on 08/01/2015. On that day, the
petitioner had sought exemption which was granted. However,
the evidence was closed. The impugned order shows that what
weighed the Magistrate is that the application was not supported
with Medical Certificate. Considering the overall circumstances, I
find that a fair opportunity can be granted to the petitioner in the
matter. The learned Counsel for the respondent has alternatively
submitted that in the event this Court is inclined to allow the
petition, a date may be fixed for the parties to attend the Court of
Judicial Magistrate, First Class, Panaji, so that the further crossexamination
can be recorded/ completed.
6. In such circumstances, rule is made absolute in terms
of prayer clause (a). The impugned order is hereby quashed and
set aside. The petitioner shall attend the Court of Judicial
Magistrate, First Class, Panaji on 07/04/2015 at 2.30 p.m. for
recording further cross-examination. No order as to costs.
7. Criminal Writ Petition is disposed of in the aforesaid
terms.
 C. V. BHADANG, J.
SMA
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