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TMI Blog2021 (2) TMI 1345X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for recall at Exh. 17-D passed by JMFC at Panaji in criminal case no. OA/122/2018/B. 3. Facts of the case is that the accused no. 1 had approached the complainant for financial assistance to start his land development project. The complainant being his friend agreed to provide him financial assistance by way of friendly loan and accordingly paid different sum on different dates totalling Rs. 45 lakhs for a period of four years. 4. They have also executed loan agreement dated 28.11.2017. The accused in discharge of part of the legal liability issued two cheques for Rs. 6 lakhs each. As the cheques were dishonoured the complainant issued statutory notice to the accused dated 23.1.2018. Though the accused received the same, he failed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned Magistrate, in normal circumstances, a party is not required to seek leave to cross examine the witness of an adversary. However, the present matter is governed by the law laid down by the Hon'ble Supreme Court in the case of Indian Bank Association & Ors. vs. Union of India & Ors. 2014 (5) SCC 590 which has been reiterated in a recent decision of the Supreme Court in the case of Meters and Instruments Private Limited & anr. vs. Kanchan Mehta, 2018 (1) SCC (Cri) 477. 10. In terms of the directions issued in the case of Indian Bank Association (supra), after appearance of the accused, the Magistrate should ask him to take notice under Section 251 of Cr.P.C. in order to enable the accused to enter his plea of defence and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine the complainant without there being any probable defence or any reason in the said application. The learned JMFC, ought to have considered that there was no reply to the statutory notice nor there is any probable defence set out in the application. 10. In such circumstances, application ought to have been rejected. Order passed by the learned JMFC below Exh, 12-D is patently illegal and erroneous and against the law laid down by the Apex Court and hence it is liable to the set aside. Accordingly, order dated 27.11.2019 below Exh. 17-D is also required to be set aside. Accordingly, I proceed to pass the following:- ORDER i. Petition is allowed. ii. Orders passed in Criminal Case No. OA/122/2018/B below Exhs. 12-D and 17-D dated 2.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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