Order 1

Order Details: Order
Pdf Text: 1 C. C. No.2616/SS/2018
Exh.26
ORDER BELOW EXH.26
1. This is an application filed by accused for recalling C.W.1
under Section 311 of Cr. P.C.
2. Brief contentions in the application are as under:
Complainant has filed present complaint under Section 138
of N.I. Act. On 01/09/2023 accused was present and his advocate was
absent due to bad health, accused unable to take cross-examination of
C.W.1 as he was unaware about court procedure. Accused was not
having any malafide intention either to delay or protract the trial. He is
ready and willing to take cross-examination of the C.W.1. Hence, this
application.
3. Complainant has filed his reply at (Exh.28) and objected
the application. He has submitted that present application is not
maintainable as it is filed to fill up the lacuna after thought and to
cause delay in hearing of main complaint. He next submits that accused
failed to file any document alongwith application in support of his
contention. He further submits that accused is taking disadvantage of
law to recover his own wrong and discrepancy. He next submits that
accused had already admitted his liability and confronted in the court
several times and agreed to pay the due amount to him. He further
submits that there is no such reason to recall the C.W.1. Hence, he
prayed to reject the application.
4. Heard advocate for both sides.
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2 C. C. No.2616/SS/2018
Exh.26
5. Perused record. It appears that evidence affidavit of C.W.1
is filed on 18/02/2020. Since then matter is pending for cross-
examination of complainant. Since then accused and his advocate failed
to take cross-examination of C.W.1. On 01/09/2023 inspite of rejection
of adjournment application accused failed to take cross-examination of
C.W.1, therefore, an order was passed to proceed without cross-
examination of C.W.1. Considering this fact and ground mentioned by
accused in the application, interest of justice requires that accused may
be given fair opportunity to bring on record events taken place
subsequent to filing of complaint. So application deserves to be
allowed. At the same time, it cannot be ignored that there has been
delay in the disposal of case due to accused, so 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 the C.W.1.
2. C.W.1 be recalled for cross-examination on payment of cost
amount.
Date : 01/04/2024
Sd/-
( Shri. R.D. Dange )
Metropolitan Magistrate,
63rd Court, Andheri, Mumbai
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