The right to fair trial and cross-examination should not be denied, and the court may allow further cross-examination with the payment of costs to ensure fair trial.

1. Heard learned respective Counsel for the parties.

2. Rule. Rule made returnable forthwith. With the consent of learned Counsel for the parties, taken up for final hearing.

3. By the present petition filed by the petitioner (original accused) under Article 227 of the Constitution of India, the petitioner has prayed that the order dated 24th July 2012, passed by the learned Judicial Magistrate (F.C.), Court No.1, Aurangabad, below Exhibit 47/D, in S.C.C. No. 5305/2009, be quashed and set aside.

4. Parties are hereinafter referred to as per their original status i.e. accused and complainant.

5. The factual matrix of the case is as under:

(a) The respondent no.2 i.e. original complainant filed S.C.C. No. 5305/2009 against the petitioner herein i.e. original accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881, and accordingly, petitioner herein is the original accused, and respondent no.2 is the original complainant therein. According to respondent no.2 i.e. original complainant, he has supplied the articles to the accused Company, and the said goods were delivered on 9-2-2009. The accused / petitioner issued a cheque bearing No. 252955 dated 16th March 2009, for Rs. 2,81,185/-against the outstanding amount of the said supplied goods, drawn on Axis Bank Limited, New Marine Lines, Mumbai. The respondent no.2 presented the said cheque for encashment purpose. However, the said cheque was dishonoured and returned unpaid on 22nd July 2009 by the banker with the bank return memo bearing endorsement "funds insufficient". Hence, respondent no.2 issued statutory notice to the petitioner, through Advocate, on 4-8-2009. The accused replied the said notice on 14-8-2009 and denied the liability of the payment of cheque amount to the complainant. Hence, the complainant filed complaint against the accused before learned Judicial Magistrate (F.C.), Court No.1, Aurangabad, under S.C.C. No. 5305/2009, under Section 138 of Negotiable Instruments Act. Accordingly, learned Judicial Magistrate (F.C.) issued process against the accused. The accused appeared in the said case and his plea was recorded and he pleaded not guilty. Thereafter, the respondent no.2 herein i.e. complainant filed his affidavit of examination in chief on 11-2-2010. Thereafter, on 27-2-2012, the said witness was cross examined by the Advocate for the accused partly, and the matter was adjourned for filing of documents and for further cross examination on 12th March 2012, 10th April 2012 and 4th May 2012.

(b) On 4th May 2012, according to the accused, the complainant was not present before the court, and therefore, cross examination could not take place in the morning session. According to the accused, in the afternoon session, Advocate for the accused was not feeling well due to sun stroke, and therefore, he preferred application for adjournment below Exhibit 43/D. The complainant filed his reply to the said application and opposed the said application. Accordingly, the said application was rejected by the learned trial court observing that the complainant was present since morning before the court and cross examination of the complainant was already conducted partly and there was no sufficient ground for adjourning the matter. In view of rejection of the said application Exhibit 43/D, learned trial court posted the matter for recording statement of the accused under Section 313 of the Code of Criminal Procedure. However, on 3rd July 2012, accused preferred another application Exhibit 47, and thereby requested to set aside the 'no cross' order and sought permission for further cross examination. The complainant filed his say and opposed the said application, and requested for issuance of warrant against the accused since he was absent before the court for recording of statement under Section 313 of the Code of Criminal Procedure. Accordingly, considering contents of the said application and the reply, learned trial court passed an ord