Dismissed

Fazal Mohammed Azizul Haque Choudhary v. the State of Maharashtra and Anr.

Bombay HC17 Sept 2021WP/2219/2021

Case brief

AI extract

What is this about?

This criminal appellate petition sought supervision under Article 227 to set aside a lower court order rejecting a recall application in a cheque dishonour case. The court found the petitioner had intentionally delayed the trial for over a year. Dismissing the petition, the High Court held no error was committed by the lower courts and directed the trial to proceed.

What did the court decide?

Petition dismissed; trial to proceed and conclude in accordance with law.

1. The petitioner is facing prosecution under Section 138 read with Section 141 of the Negotiable Instruments Act in the proceedings Case No.1130/SS/2018. Petitioner’s application to recall the witness/complainant was rejected by the Learned Additional Chief Metropolitan Magistrate, 6th Court at Mazgaon on 9th December, 2019.

This order was confirmed in revision on 25th March, 2021. In these circumstances, the petitioner has approached this Court in its supervisory jurisdiction under Article 227 of the Constitution of India.

`SR.NO.`	`DATE`	`PARTICULARS`
`1`	`15` `th September,` `2018`	`Affidavit in Lieu of Evidence filed by` `Complainant (Respondent No.2). Matter` `adjourned for Cross Examination.`
`2`	`29` `th November,` `2018`	`Application for Adjournment field by Accused` `(petitioner). Application allowed. Adjourned` `for Cross-Examination.`
`3`	`20` `th December,` `2018`	`Application for Adjournment filed by Accused` `which was allowed subject to cost of Rs.500/-.` `Adjourned for Cross-Examination.`
`4`	`16` `th January, 2019`	`Adjourned by consent of both parties.`
`5`	`14` `th February,` `2019`	`Complainant present. Advocate for Accused` `absent.``First No Cross Order passed.` `Adjourned for evidence.`
`6`	`13` `th March, 2019`	`Accused first filed Application for Recall` `of Order``dated 14` `th February, 2019.` `Application allowed``.`
`7`	`13` `th June, 2019`	`Complainant present. Advocate for Accused` `absent.``Second No Cross Order passed.`
`8`	`26` `th June, 2019`	`Accused filed second Application for` `Recall of Order``dated 13` `th June, 2019. Say` `given and adjourned for Arguments.`
		`Interim Compensation Application filed by` `Complainant. Adjourned for say (Exh.32).`

SR.NO.

DATE

PARTICULARS

1

15
th September,
2018

Affidavit in Lieu of Evidence filed by
Complainant (Respondent No.2). Matter
adjourned for Cross Examination.

2

29
th November,
2018

Application for Adjournment field by Accused
(petitioner). Application allowed. Adjourned
for Cross-Examination.

3

20
th December,
2018

Application for Adjournment filed by Accused
which was allowed subject to cost of Rs.500/-.
Adjourned for Cross-Examination.

4

16
th January, 2019

Adjourned by consent of both parties.

5

14
th February,
2019

Complainant present. Advocate for Accused
absent.First No Cross Order passed.
Adjourned for evidence.

6

13
th March, 2019

Accused first filed Application for Recall
of Orderdated 14
th February, 2019.
Application allowed.

7

13
th June, 2019

Complainant present. Advocate for Accused
absent.Second No Cross Order passed.

8

26
th June, 2019

Accused filed second Application for
Recall of Orderdated 13
th June, 2019. Say
given and adjourned for Arguments.

Interim Compensation Application filed by
Complainant. Adjourned for say (Exh.32).

`9`	`4` `th July, 2019`	`Arguments heard on second application for` `recall. Adjourned for Orders and Say on Exhibit` `32.`
`10`	`16` `th July, 2019`	`Application Allowed subject to cost of` `Rs.5,000/-``Adjourned for Say Exhibit 32.`
`11`	`8` `th August, 2019`	`Advocate for Accused and Accused` `Absent``. Adjourned for Say on Exhibit 32.`
`12`	`5` `th September,` `2019`	`Complainant Present. Accused Present.` `Advocate for Accused Absent. Cost of` `Rs.5000 paid by Accused``.`
`13`	`19` `th September,` `2019`	`Complainant Present. Accused Present.` `Advocate for Accused Absent. Third No` `Cross Order passed. Accused filed Third` `Appliation for Recall of Order (Exhibit` `33)``. Pursis filed by Complainant for no further` `evidence (Exhibit 34). Adjourned for 313` `Statement of Accused.`
`14`	`9` `th October, 2019`	`Both sides present. Argument of Accused heard` `on third application for recall.`
`15`	`14` `th November,` `2019`	`Both sides present. Argument of Complainant` `heard on third application for recall.`
		`__________________________________________` `Adjourned for Orders and Statement of Accused`
`16`	`9` `th December, 2019`	`Both sides present.``Third Application for` `Recall rejected``. Adjourned for Statement of` `Accused.`
`17`	`6` `th January, 2020`	`Both sides present. Application for` `Adjournment filed by Accused which was` `allowed. Adjourned for Statement of Accused.`
`18`	`3` `rd February, 2020`	`Application filed by Accused stating stay of` `proceedings as per the Hon’ble Sessions Court,` `Bombay.`
`19`		`Matter stayed since.`

9

4
th July, 2019

Arguments heard on second application for
recall. Adjourned for Orders and Say on Exhibit
32.

10

16
th July, 2019

Application Allowed subject to cost of
Rs.5,000/-Adjourned for Say Exhibit 32.

11

8
th August, 2019

Advocate for Accused and Accused
Absent. Adjourned for Say on Exhibit 32.

12

5
th September,
2019

Complainant Present. Accused Present.
Advocate for Accused Absent. Cost of
Rs.5000 paid by Accused.

13

19
th September,
2019

Complainant Present. Accused Present.
Advocate for Accused Absent. Third No
Cross Order passed. Accused filed Third
Appliation for Recall of Order (Exhibit
33). Pursis filed by Complainant for no further
evidence (Exhibit 34). Adjourned for 313
Statement of Accused.

14

9
th October, 2019

Both sides present. Argument of Accused heard
on third application for recall.

15

14
th November,
2019

Both sides present. Argument of Complainant
heard on third application for recall.

__________________________________________
Adjourned for Orders and Statement of Accused

16

9
th December, 2019

Both sides present.Third Application for
Recall rejected. Adjourned for Statement of
Accused.

17

6
th January, 2020

Both sides present. Application for
Adjournment filed by Accused which was
allowed. Adjourned for Statement of Accused.

18

3
rd February, 2020

Application filed by Accused stating stay of
proceedings as per the Hon’ble Sessions Court,
Bombay.

19

Matter stayed since.

4. The events reproduced hereinabove are sufficient to infer that petitioner has made all efforts to protract the proceedings which are pending since 2018. It is so evident from the date-wise chronology of events, so much to say

that, although “No Cross Order” was passed on 14th February, 2019, application to recall the witness was made on 13th March, 2019. Although, petitioner was afforded opportunity to conduct the cross-examination, he successfully avoided to cross-examine the witness from February, 2019 to September, 2019. In the circumstances, I have no doubt, in my mind, that the applicant deliberately and intentionally made all efforts to protract the trial. May be for the reason that the cheque returned unpaid was for Rs.67,00,000/- (Rs. Sixty Seven Lakhs).

5. In consideration of the facts of the case and the proceedings under Section 138 of the Negotiable Instruments Act being summary in nature, in my view, the Courts below have not committed error in exercise of the jurisdiction. Therefore, no interference is called for. Petition is dismissed. The trial Court shall proceed with the trial and conclude it in accordance with law.

Fazal Mohammed Azizul Haque Choudhary v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Fazal Mohammed Azizul Haque Choudhary v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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