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TMI Blog2023 (8) TMI 1497X X X X Extracts X X X X X X X X Extracts X X X X ..... repared to cross examine the complainant on the ground that his advocate is busy before another Court. Section 309 of Cr.P.C. provides that the fact that pleader of the party is before another Court cannot be a ground for adjournment. Hence, cross of the accused is closed. The statement was explained to the accused and the case was kept for defence evidence. Advocate also could not remain present on account of miscommunication about the date of hearing. In the application under Section 145(2) of the Act, it was stated that the case has been filed by the complainant fraudulently by misusing cheques. The accused has paid the amount as claimed by complainant. Learned Magistrate vide order dated 7.2.2023 allowed the applications. The Court had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D. NAIK, J. 1. Petitioner challenges order dated 7.2.2023 passed by learned Judicial Magistrate First Class C Court Panaji Goa below Exh. D-33 and D-34 in Criminal Case No. 562/OA/NIA/2016/C and order dated 7.2.2023 passed by learned Judicial Magistrate, First Class C Court Panaji Goa below Exh.D-36 and D-37 in Criminal Case No. 561/OA/NIA/2016/C allowing the applications preferred by the accused for the purpose of cross examination of PW1. 2. Petitioner is complainant. Complaints are filed for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 ( NI Act for short). Complainant had alleged that Regular Civil Suit no.72/2011/C was filed by the complainant against the accused/respondent. It was mutually settled. Conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applications below Exh. D-33 and D-34 were allowed. PW1 was recalled for the purpose of cross examination with direction that no adjournment will be granted to the advocate for the accused. 4. Criminal Writ Petition No. 114/2023/F pertains to Criminal Case No. 561/OA/NIA/2016/C. The examination in chief of the complainant was recorded on 29.9.2022. The Advocate for accused was not present. The Court recorded that accused has not made application to cross examine the complainant. Even otherwise the accused is not prepared to cross examine the complainant on the ground that his Advocate is before another Court. Section 309 of Cr.P.C. provides that the fact that pleader of the party is before another Court is not ground for adjournment. Cross ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial Court was not justified in law in passing the impugned order. viii. While filing application under Section 145(2) of the NI Act accused has to disclose plea/defence on which he will cross examine the witness and if he fails to do so accused cannot avail the said facilities. 6. Learned Advocate for the petitioner relied upon the decision of this Court in Criminal Writ Petition No. 838/2021(Filing) in the case of Apolonius Francisco Luis Vs Sahajanand Investments Pvt. Ltd in dated 17.9.2022. 7. Learned Advocate for the respondent submitted that there is no infirmity in the impugned order. The accused must be be permitted to cross examine the complainant. Opportunity to cross examine cannot be denied on flimsy grounds. Consent decree da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the case has been filed by the complainant fraudulently by misusing cheques. The accused has paid the amount as claimed by complainant. Learned Magistrate vide order dated 7.2.2023 allowed the applications. The Court had observed that the accused was not aware about the filing of an application for cross examination on the date of completion of examination in chief of PW1. Advocate was not present. Even on the next date Advocate was not present. Accused was present in person and his statement was recorded. Subsequently on 31.10.2022 accused was represented by advocate under Free Legal Aid and the application was preferred for recalling the witnesses. Admittedly no such application for cross examination was filed on the date when examin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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