Order 2

Order Details: Order Below EX 1
Pdf Text: MHMM180067052021
Summary Cases/5800021/2021
MR. MOTI PARTABRAI TOLANI Vs. MR. HYDER ALI RAHAT GOLA
IN THE COURT OF THE METROPOLITAN MAGISTRATE, 58TH COURT,
BANDRA, MUMBAI
ORDER BELOW APPLICATION EXH.42
This is the application filed for setting aside ‘No cross’
order came to be passed against the accused. It is contended on behalf
of the accused that the earlier advocate was not in position to take
cross examination of the complainant due to not giving instructions by
the client. The accused has good case on merit etc. Hence this
application.
2. The complainant objected the application vide detailed
reply. The sum and substance of the reply of the complainant is that
accused is intending to prolong the hearing of the case. Accordingly,
prayed for rejecting the application.
3. Before considering merits of the application, it is pertinent
to note that the accused was informed about expediting the trial on the
ground of complainant being senior citizen vide speaking order below
application Exh.19. Said order was passed in open court in presence of
parties on 04.12.2023. The complainant had already adduced his
evidence on affidavit in the year 2022. Thereafter, accused and his
advocate remained absent and as such no cross order came to be
passed on 20.01.2024.
4. The record and proceeding speaks for the things occurred
in the trial. There is reason to believe from the conduct of the accused
that he is protracting the trial without just cause. The accused was
given prior intimation vide order below Exh.19, so as to exercise his
right of cross examination. The willful conduct of remaining absent
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2 Summary Cases/5800021/2021
Order Below Exh.42
and not exercising the right of cross examination by the accused or his
advocate is more than sufficient to draw an adverse inference against
them. Today also accused is absent which shows that he is happy only
in keeping the matter lingering.
5. There cannot be any dispute that in adversary system of
litigation accused has important right to cross examine witnesses of
adversary. The said right is in fact a substantive right, to be exercised
as per the limitation imposed by the statute. It can not continue for
indefinite period. If the right to cross examine is not exercised with
due diligence, same can be taken off by passing no cross order. Hence,
the right claimed by the accused is not absolute and indefeasible right.
6. However, in order to hear both parties on merits, the
accused needs to be given an opportunity subject to saddling heavy
costs for compensating the complainant who is senior citizen. It should
not happen that accused has not given an opportunity to raise his
defence. Hence, I pass following order.
ORDER
1. Application is allowed subject to costs of Rs.10,000/- to be
paid to the complainant within 15 days from today.
2. Costs are condition precedent to exercise right of cross
examination.
3. Advocate on record for the accused to take note that
complainant is senior citizen and the trial is expedited vide
order dated 04.12.2023.
4. Order dictated and pronounced in open court.
Mumbai, (M. P. Saraf)
Dated : 21.06.2024. Metropolitan Magistrate,
58th Court, Bandra, Mumbai.
J.O.Code-MH01362
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Order Below Exh.42
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 : Metropolitan Magistrate, 58th Court, Bandra,
Mumbai.
Dictated in open court on : 21.06.2024.
Transcribed and Typed on : 21.06.2024.
Order printed and Signed on : 21.06.2024.
Order Uploaded on : 21.06.2024.
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