2025:BHC-NAG:353 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL WRIT PETITION NO. 853 OF 20 24 PETITIONER : Mr. Girish Dinesh Gokhale, (Ori. Complainant) Aged about 43 years, Occupation – Business, R/a. Near Pundlik Baba Ashram, Raut Wadi, Umri. Presently Akola Tq. & Dist.

Akola.

VERSUS RESPONDENT : Mr. Prakash Premchand Yelwankar, (Ori. Accused) Prop. Shri Sant Gajanan Baba Travels, Aged about 47 years, Occ. Business; R/o A/2 Ramdev Baba Plot, Sudhir Colony, Akola, Tq. & Dist. Akola.

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Mr. P.K. Mohta, counsel for petitioner.

None for the respondent.

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CORAM : URMILA JOSHI-PHALKE, J.

DATE : 07/01/2025 ORAL JUDGMENT :

1. Despite the notice served on the respondent, respondent failed to appear before this Court and therefore, matter is proceeded in his absence.

2. Rule.

3. Heard finally with the consent of learned counsel for the petitioner Mr. P.K. Mohta.

4. This criminal writ petition is filed under Article 227 of the Constitution of India along with Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) of 2023 and challenged the order dated 18/7/2024 and 22/8/2024 passed below Exhibit Nos. 34 and 37 by the learned Additional Chief Judicial Magistrate, (Court No. 4), Akola, in Summary Criminal Case No. 3892/2022, by which the learned trial Court has allowed the application for cross-examination of the complainant by recalling the complainant and also permitted to deposit the amount of cost to the respondent.

5. The facts giving rise to the petition are as under;

The petitioner in the present petition is the original complainant who has filed the complaint under Section 138 of the Negotiable Instruments Act, 1881, against the respondent. As per the allegation, the respondent, towards the discharge of debt and payment of existing liability, issued a cheque of Rs. 2,00,000/-

dated 18/03/2022 bearing No. 092484 of Union Bank of India, Station Road Branch, Akola, in favour of the petitioner. The said cheque was deposited by the petitioner in his bank account on 19/05/2022, however, the same were dishonoured for the reason “Inactive Account” on 20/05/2022. Thereafter, the petitioner had issued a legal notice dated 27/05/2022 to the respondent, which was received by him on 30/05/2022. After receipt of the notice, the respondent failed to pay the amount, and therefore the petitioner was constrained to file the complaint against the present respondent on 01/07/2022.

6. Learned Magistrate took cognizance of the complaint and issued the summons to the present respondent. In response to the summons, the respondent appeared and pleaded not guilty. The complainant has adduced his evidence on 06/04/2023, and after adducing the evidence, closed his evidence on 08/02/2022. The statement of the accused under Section 313 of Code of Criminal Procedure was recorded on 02/04/2024 thereafter, sufficient opportunities were granted to the present respondent to adduce the evidence, but he has not adduced the evidence, and therefore his evidence was closed on 22/04/2024. Subsequent to that, he has filed an application under Section 311 of Cr.P.C. for recalling the complainant. The same was rejected by the court, and subsequent to that, the matter was posted for the argument.

7. Learned counsel for the complainant has made his submissions, and thereafter again, the application was filed by the present respondent under Section 311 of Cr.P.C., contending that he has to rebut the presumption and therefore, he has to cross- examine the witness, and therefore, the complainant requires to be recalled. The said application was allowed by the Court subject to the cost of Rs. 3000/-.

8. The application for seeking permission to deposit the costs was rejected, and subsequently another application was filed to deposit the cost, which was allowed.

9. Being aggrieved with t