VIRENDER VERMA Vs. BHARAT BHUSHAN

JUDGEMENT

(1.) THIS petition has been filed by the petitioner under Section 482 Cr.P.C. feeling aggrieved from the order dated 18.07.2012 vide which the learned ASJ allowed the criminal revision petition No.17/2011 filed by the petitioner impugning the order dated 25.02.2011 passed by the learned MM dismissing the application under Section 311 Cr.P.C.

(2.) IN brief the facts leading to the filing of this petition are that Shri Bharat Bhushan, the respondent filed a criminal complaint under Section 138 of the Negotiable Instruments Act against the present petitioner. The petitioner examined two defence witnesses, but they could not be cross -examined by the complainant and the trial court recorded that 'opportunity not availed, therefore, right to cross is closed'. Thereafter, the complainant moved an application under Section 311 Cr.P.C. as defence witness could not be cross -examined on the date when they appeared, and seeking opportunity to cross -examine the defence witnesses. The prayer was declined by the learned M.M.

(3.) THE learned ASJ vide impugned order dated 18.07.2011 observed that on 04.01.2011 counsel for the petitioner was not available and thereafter an application under Section 311 Cr.P.C. was moved which was dismissed by learned M.M.. Observing that change of counsel is no ground, the learned ASJ allowed the application, but at the same time every case has to be judged on its own facts & circumstances, the revision petition was allowed and the complainant was granted two opportunities to cross -examine the defence witnesses. It was also specified that if the petitioner failed to cross -examine the defence witnesses during the two opportunities given, no further opportunity shall be granted by the trial court and the matter shall be proceeded further as per law.