Order 1

Order Details: Order
Pdf Text: 1 C. C. No.2254/SS/2018
Exh.70
ORDER BELOW EXH.70
Read application and say filed by the complainant. Heard
both sides. This is an application filed by accused for recalling of C.W.1
for cross-examination.
2. It is the contention of accused that evidence of C.W.1 is in
progress and closure of evidence would cause irreparable harm to him.
It is further contended that advocate for accused was in personal
difficulty and travelling out of the country. It is also contended that non
participation of advocate of accused is neither willful nor wanton hence,
he prayed to allow the application and permit him to conduct cross-
examination of C.W.1.
3. Complainant has filed his say at (Exh.71) and objected the
application. He has submitted that evidence affidavit of complainant
was filed on 19/08/2019. Thereafter, matter was adjourned to various
dates but the accused failed and neglected to attend the Court. It is also
contended that on 21/10/2022 advocate for accused prayed for time to
cross-examine the complainant and court was pleased to grant time and
adjourned the matter as a last chance and if complainant is not cross-
examined, no cross order will be passed. Thereafter, accused shown his
willingness to settle the matter so matter was adjourned. It is next
submitted that on 17/06/2023, 05/08/2023, 09/02/2024 and
18/07/2024 complainant was cross-examined and matter was
adjourned to 30/08/2024. Thereafter, accused and his advocate were
absent and so the cross-examination of complainant was closed by this
Court and matter was kept for bank witness on 07/02/2025. It appears
that the accused is un-necessarily delaying the matter hence, he prayed
to dismiss the application with compensatory costs.
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2 C. C. No.2254/SS/2018
Exh.70
4. Heard both sides. Advocate for complainant orally
submitted that application may be allowed on condition to complete the
cross-examination on same day.
5. Perused record. It appears that the accused is prosecuted
for the offence punishable under Section 138 of N.I. Act. Complainant
has filed his evidence affidavit on 19/08/2019. Since from 11/11/2019
matter was pending for cross-examination. Thereafter, 17/06/2023,
05/08/2023, 09/02/2024 and on 18/07/2024 part cross-examination
of complainant was conducted. On 24/12/2024 accused and his
advocate on record was absent. His holding advocate was present and
sought oral adjournment. His oral prayer was rejected and no further
cross-examination order was passed. Accused is ready to conduct the
cross-examination of C.W.1. If the application is not allowed, accused
will be precluded to raise his defence. On the contrary, if present
application is allowed, it will not cause any prejudice to the
complainant. Hence, considering the above aspect and in the larger
interest of justice, application deserves to be allowed. However, accused
has filed present application after closing evidence of the complainant,
therefore, some cost is necessary to be saddled on him. In the result, I
pass following order :
ORDER
1. Application is allowed subject to payment of costs of Rs.2,000/-
(Rupees Two Thousand Only) to be paid to C.W.1.
2. C.W.1 be recalled for further cross-examination on payment of cost
amount.
Date : 24/07/2025
Sd/-
( Shri. M. S. Budhwant )
Judicial Magistrate First Class,
63rd Court, Andheri, Mumbai
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