Interim Order 1

Order Details: Order Below EX 1
Pdf Text: MHMM180031722018
Summons Cases SS/222/2018
M-S MATEL TOYS INDIA P LTD Vs. M-S VIRAJ
ENTERPRISE
IN THE COURT OF JUDICIAL MAGISTRATE(FIRST CLASS), 58TH COURT,
BANDRA, MUMBAI
ORDER BELOW APPLICATION EXH.22
1. This is an application filed on behalf of the accused for
recalling the complainant by setting aside no cross order dated
05.01.2024 came to be passed against the accused.
2. It is contended on behalf of the accused that on last date
accused could not remained present before this court due to health
issues. His advocate want to attend the old matter before Small Causes
Court and as such could not remained present on 05.01.2024. On
08.09.2023 accused received the cost from the complainant. On
10.11.2023 advocate for complainant sought time and as such matter
adjourned for cross examination. On this factual aspect, the captioned
application is moved for setting aside no cross order without showing
willingness and readiness to cross examine the complainant today
itself.
3. Complainant absent. His advocate orally objected the
application.
4. Heard both sides.
5. Perused proceeding. The orders passed by previous Ld.
Metropolitan Magistrate from time to time below Exh.01 are self
speaking as to the conduct of the accused to protract the litigation. It is
not that the matter is proceeded to ‘No Cross’ order dated 05.01.2024
hurriedly without giving opportunity to the accused. Earlier stage of the
proceeding has also gone up to the stage of Judgment in absence of
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Order Below Exh.22
accused and his advocate. The proceeding and the orders shows that
due to absence of accused and advocate the evidence of complainant
was closed. His defence evidence was also closed by dispensing
statement of accused under section 313 of Code of Criminal Procedure.
One thing is quite clear that accused is not diligent while exercising the
right of cross examination.
6. Apart in order to give sufficient opportunity to the accused
for hearing the matter on merits, the delay tactics played by the
accused reflecting from the post conduct of the accused are neglected
by saddling heavy costs upon the accused to establish his defence. No
purpose will be served by rejecting the application knowing well the
delay tactics of the accused. On the contrary it will again enhance
period of litigation under the guise of using remedy available in law.
The same will frustrate the object of the Act contemplated vide section
143(2)and (3) of Negotiable Instrument Act. Today neither
complainant is present nor accused. Hence, I pass following order.
ORDER
1. No cross order passed against the accused dated 05.01.2024
stands set aside subject to costs of Rs.10,000/- to be paid to
the complainant.
2. Costs are condition precedent to exercise the right of cross
examination.
3. Complainant’s advocate to keep the complainant present
positively on next date.
4. Advocate for accused to keep the accused present and to take
note that no adjournment will be granted on next date on
any ground and in case of failure of payment of costs and
conducting cross examination, Judgment will be delivered as
it is on available evidence on record on same day.
Mumbai, (M. P. Saraf)
Dated : 06.07.2024. Judicial Magistrate, First Class,
58th Court, Bandra, Mumbai.
J.O.Code-MH01362
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Order Below Exh.22
CERTIFICATE
I affirm that the contents of this P.D.F. file Order are same, word to word as per the
original Order.
Name of Stenographer : Mrs. Aditi Ravikiran Dalvi
Court : Judicial Magistrate, First Class, 58th Court, Bandra,
Mumbai.
Dictated in open court on : 06.07.2024.
Transcribed and Typed on : 06.07.2024.
Order printed and Signed on : 06.07.2024.
Order Uploaded on : 06.07.2024.
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