INDO INTERNATIONAL LTD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) On July 6, 2005, I had taken up this petition for final disposal at admission stage with the consent of the parties. On that day, I heard the submissions of the learned Senior Counsel appearing on behalf of the Petitioners in all these petitions. On that day, I have extensively heard the respondent No. 2 appearing in person. I reserved the Judgment and fixed these matters on 25th July 2005 for pronouncement of Judgment. Thereafter, these petitions were mentioned before me by the learned Public Prosecutor. The learned Public Prosecutor requested me to give an opportunity to the learned Advocate General to make his submissions. Accordingly on 15th July 2005,1 have heard submissions of the learned Advocate General. The learned senior Counsel appearing for the Petitioners replied to the submissions made by the learned Advocate General. I had the benefit of perusing the written submissions filed by the learned Counsel on behalf of the Petitioners and the submissions in writing filed by the respondent No. 2 appearing in person who is the original Complainant.

(2.) These petitions can be disposed of by a common Judgment and Order as the facts and the questions involved are identical in all these petitions. For the sake of convenience reference is made to the facts of the case in Criminal writ Petition No. 1274 of 2005. The Petitioners are the original accused and the Respondent No. 2 is the original Complainant. A private complaint has been filed by the Respondent No. 2 in the Court of the learned Metropolitan magistrate, 23rd Court, Ballard Estate, Mumbai, alleging commission of offence punishable under section 138 read with section 141 of the Negotiable instruments Act, 1881 (hereinafter referred to as "the said Act of 1881"). Considering the controversy involved in these petitions it is not necessary to refer to the various assertions made in the complaint, as I am not called upon to adjudicate upon the merits of the complaint.

(3.) On 24th May 2004, the respondent No. 2 who is the original Complainant filed his affidavit of examination-in-chief by taking recourse to the provisions of section 145 (1) of the said Act of 1881. An Application was made by the Petitioners on 17th March, 2005 before the learned Magistrate. The prayer made in the said application was for requesting the learned Magistrate to exercise his powers under sub-section (2) of section 145 of the said Act of 1881 and pass suitable orders for summoning and examining the Respondent no. 2/complainant as a witness. The contention raised in the Application in short is that once an Application is made under sub-section (2) of section 145 by the Petitioner-Accused, the Court was bound to call the Respondent no. 2 for the purpose of recording his examination-in-chief. Another contention raised was that the examination which is referred to in sub-section (2) of section 145 is not restricted to the cross-examination of the Respondent No. 2 who had filed an affidavit of examination-in-chief. Reliance was placed on the decision of the learned Single Judge of this Court in Criminal Writ Petition no. 26 of 2004. Relying upon the said decision, the submissions were made in the Application. The said application was opposed by the Respondent No. 2 appearing in person by filing his reply. The Respondent No. 2 opposed the application relying upon the decision of the Division Bench of this Court in (KSL and Industries Ltd. v. Mannalal Khandelwal) , Criminal Writ Petition No. 1228 of 2004 reported in 2005 (1) Bom. C. R. (Cri. ) 520 and other connected matters. The said decision was pronounced on 1st February 2005. The learned metropolitan Magistrate rejected the Application made by the Petitioners by holding that merely because the Petitioner-accused filed Application under section 145 (2) of the said Act of 1881 it was not necessary to call the respondent No. 2 for recording examination-in-chief.