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TMI Blog2021 (8) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... to deposit an amount of Rs. 1,80,000/- as an interim compensation. As the amount was not deposited and also inspite of opportunity granted, the cross-examination was closed and matter was adjourned for settlement under Section 313. The accused moved application under Section 311 for recalling of the complainant for cross-examination and setting aside the order dated 16.08.2019 closing the cross-examination of the complainant. That application came to be allowed against which the complainant filed Writ Petition No. 253/2019. The said petition was allowed and this Court held that there are no inherent powers vested in the Judicial Magistrate to recall its own order and also observed that under Section 311 the Court empowered to summon a material witness, or examine a person or recall and re-examine a person who was already examined if it appeared to be essential to the just decision of the Court. Thirdly, there is no reason whatsoever given while allowing application under Section 311 of the Code. In view thereof the impugned order was quashed and set aside. 5. Learned Counsel for the complainant raised preliminary objection to the maintainability of the petition. 6. To the object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be said to be interlocutory. Orders, which are purely incidental, for example, such as granting or refusing adjournments or which are in the nature of steps in aid can be termed as interlocutory so as to bar the revisional jurisdiction. 9. As against this, learned Counsel for complainant submitted that petition is not maintainable but revision would lie. He relied on citation Amarnath & Ors. V/s. State of Haryana & Ors. AIR 1977 SC 2185. He placed reliance on para 6 of the said judgment, which reads as under : "6. Let us now proceed to interpret the provisions of S. 397 against the historical background of these facts. Sub-section (2) of S. 397 of the 1973 Code may be extracted thus : "The powers of revision conferred by Sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding." The main question which falls for determination in this appeal is as to, the what is the connotation of the term "interlocutory order" as appearing in sub- s. (2) of S. 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well-known legal significance and does not pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der : Date Brief reason for adjournment 23/01/19 The complainant filed affidavit in evidence, copy of which was served on the accused. On the same day, the complainant had advanced his arguments on application filed under Section 145(2) of the NI Act. The opportunity was given to the accused and matter was adjourned for arguments in reply on 28.01.2019. 28/01/19 As accused sought time, matter was adjourned for filing written arguments on application for interim relief and was posted on 02.02.2019 02/02/19 Accused filed his reply cum written arguments and matter was posted for orders on interim relief on 13.02.2019. 13/02/19 The application for interim relief was granted on 13.02.2019 by which present accused was directed to deposit Rs. 1,80,000/- to the complainant within 60 days. Matter was then posted on 16.03.2019. 16/03/19 Counsel for accused filed application for exemption which was granted and evidence of PW1 was recorded. Thereafter, it was adjourned to 11.04.2019 for cross-examination. 11/04/19 An application for adjournment was endorsed by the Advocate of the complainant. The learned Judge granted time for finalising settlement and cross and poste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 020 Court received copy of judgment along with writ of Writ Petition No.253 of 2019. 14. This Court held that the order passed by the JMFC recalling the order of closure of evidence is illegal and he has no power under Section 311 to recall his own order. Secondly, recourse to such an application is not to fill up the lacuna but to examine and/or re-examine a witness which estimation of the Court is essential to the just decision of the case. Thirdly, there is no reason whatsoever given while allowing application under Section 311 of the Code. In view thereof, the impugned order was quashed and set aside. 15. By this petition, the petitioner is challenging order passed by the learned JMFC on 16.08.2019 by which his application for adjournment was rejected and cross of PW1 was closed. 16. Learned Counsel for the accused relied on State Bank of India V/s. Km. Chandra Govindji (2000) 7 Supreme 707, wherein Hon'ble Apex Court held at Para 7 as under : "In ascertaining whether a party had reasonable opportunity to put forward his case or not, one should not ordinarily go beyond the date on which adjournment is sought for. The earlier adjournments, if any, granted would certainl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... journment has been sought for would not be of any materiality. Because if the adjournment had been sought for on flimsy ground the same would have been rejected. 22. If roznama dated 16.08.2019 is perused the accused was absent. His advocate Noronha was represented through Shri V. Naik. Thus order was passed in the absence of accused as well as his advocate. Exemption was granted to the accused. However application for grant of adjournment was rejected and cross of PW1 was closed. Roznama of previous date shows that there was application filed by Counsel for accused alongwith medical certificate. On all these dates where adjournment is granted the advocate for accused sought exemption of his appearance. Thus, accused may not be having any idea whether the evidence of PW1 will be closed or even if he is having idea the advocate for accused appears to be not well and was seeking adjournments. However, this fact also cannot be overlooked but accused is not as diligent in pursuing his matter. It also reveals from the roznama that the cross of PW1 had commenced but ultimately it could not be concluded for one or the other reason. Though amount of Rs. 1,80,000/- has been deposited in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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