Bombay High Court
Ms Pande Iron Trading Company Through ... vs Nasiruddin Mohamadali Lakhani And ... on 5 March, 2025
2025:BHC-AUG:6964
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
902 CRIMINAL WRIT PETITION NO. 117 OF 2025
M/s. Pande Iron Trading Company,
Through its Partner
Pankaj S/o. Trilokchand Pande,
Age. 55 years, Occu. Business,
R/o. Opp. Bank of Maharashtra, Chauraha
Aurangabad.
At presnet R/o. 50 Greens Society,
Opposite Kamalnayan Bajaj Hospital,
Beed Bypass, Aurangabad. ...Petitioner
Versus
1. Nasiruddin S/o. Mohamadali Lakhani,
Age. 60 years, Occu. Business,
R/o. Jwaladas Maharaj Math,
Kailash Nagar, Aurangabad.
2. The State of Maharashtra
Through the office of
Public Prosecutor, High Court of Bombay
Bench at Aurangabad. ...Respondents
Advocate for the Petitioner : Mr. Bhandari Anand P.
Advocate for Respondent No. 1 : Mr. S.M. Biyani
APP for Respondent No. 2 : Mr. K.K. Naik
AND
903 CRIMINAL WRIT PETITION NO. 118 OF 2025
M/s. Pande Iron Trading Company,
Through its Partner
Pankaj S/o. Trilokchand Pande,
Age. 55 years, Occu. Business,
R/o. Opp. Bank of Maharashtra, Chauraha
Aurangabad.
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At presnet R/o. 50 Greens Society,
Opposite Kamalnayan Bajaj Hospital,
Beed Bypass, Aurangabad. ...Petitioner
Versus
1. Nasiruddin S/o. Mohamadali Lakhani,
Age. 60 years, Occu. Business,
R/o. Jwaladas Maharaj Math,
Kailash Nagar, Aurangabad.
2. The State of Maharashtra
Through the office of
Public Prosecutor, High Court of Bombay
Bench at Aurangabad. ...Respondents
Advocate for the Petitioner : Mr. Bhandari Anand P.
Advocate for Respondent No. 1 : Mr. S.M. Biyani
APP for Respondent No. 2 : Mr. S.M. Ganachari
CORAM : Y. G. KHOBRAGADE, J.
Dated : 05th March, 2025
JUDGMENT :
-
1. Rule. Rule made returnable forthwith. With consent of
both the sides, it is heard finally at the stage of admission.
2. In both these petitions, the petitioner/Accused takes
exception to the Judgments dated 08.01.2025 passed by the
learned Additional Sessions Judge-11, Aurangabad, in Criminal
Revision Application Nos. 286 of 2023 and 296/2023, thereby set
aside order dated 26-09-2023 passed by the learned 10 th Judicial
Magistrate First Class, Aurangabad, below Exh. 137 and 138 in
SCC No. 3107 of 2014 and SCC No. 3108 of 2014.
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3. In both these petitions, the petitioner is the original
complainant and Respondent no. 1 is the accused in complaint SCC
Nos. 3107/2014 and 3108/2014. For the sake of brevity, parties to
the present petitions would be referred as complainant and
accused.
4. The complainant filed two complaints SCC Nos. 3107/2014
and 3108 of 2014 under Sec. 138 of the Negotiable Instruments
Act, (in short NI Act) alleging that, on different dates and under
different invoices he sold TMT steel bars worth of Rs. 32,08,653/-
on credit to the Accused. In order to repayment price of TMT steel
bars, the accused issued cheques described in the memo of both
the complaints, however, those cheques were returned unpaid on
ground that drawer of cheques stopped the payment. Therefore,
independent mandatory notice u/s 138 of NI Act was issued,
however, inspite of service of notice, the accused fail to comply
with the same.
5. After service of summons, the accused appeared in
both the complaints and his plea independently recorded in both
complaints. Since the accused pleaded not guilty and claimed for
trial, therefore, the learned Judicial Magistrate called upon the
complainant to prove his case by adducing evidence. The
complainant has filed evidence affidavit in both the complaints on
07.02.2015 and undergone cross-examination conducted on behalf
of the accused on 06.10.2013.
6. Thereafter, on 16.11.2015, the complainant filed
evidence affidavit of Complainant's Witness No. 2 (C.W. 2) Mr.
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Nitin Bangad but his cross-examination was not conducted till
04.11.2017, hence, learned Judicial Magistrate passed an order on
04.11.2017 and closed evidence of P.W.2 because the complainant
filed evidence clousure Pursis in both the complaints and posted
said complaints for recording statement of the accused under
Section 313 of Cr.P.C. Since, the accused was remain absent, hence,
the learned Magistrate has not recorded statements of the accused.
However, on 21.04.2018, the accused filed an application and
prayed for setting aside order of no cross and sought permission to
cross examine the complainant. On 23.01.2019, learned Magistrate
passed an order and had granted applications in both complaints
by setting aside order of no cross. Inspite of said fact, the accused
failed to cross-examine the P.W. 2 for more than 3 ½ years.
Ultimately, on 16.09.2022, the learned Magistrate passed an order
and proceeded both complaints without cross examination of P. W.
2 holding that, the Accused fail to cross examine said witness even
after lapse of five years from the date of filing of evidence affidavit
of P.W. 2.
7. Thereafter, on 21.08.2022, the accused filed Exh. 81
the application and prayed for setting aside order of no cross
passed on 16.09.2022. On 01.03.2023, the learned Magistrate
passed an order below Exh. 81 in SCC No. 3107/2014 and exhibit
75 in SCC No. 3108/2014 and rejected both the applications
holding that,earliedr twice order of no cross was set aside but the
accused fail to cross-examine the C. W. 2.
8. Irrespective of above, on 21.10.2022, the accused
again filed Exh. 82 an application under Section 311 of Cr.P.C., and
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prayed for recall of witness P. W. 1 (complainant) and P.W. 2. On
01.03.2023, learned Judicial Magistrate passed orders below
applications under Section 311 of Cr.P.C., in both complaints and
rejected said applications holding that, the accused already
conducted cross examination of the P. W. 1/ complainant but he fail
to cross-examine the CW2. The claimant filed Pursis Exh. 65 on
30.12.2017 and closed his evidence.
9. Being aggrieved by said order dated 01.03.2023,
passed below Exh. 81 in SCC No. 3107/2014 and Exh. 75 in SCC
No. 3108/2014, the accused filed two criminal writ petition
bearing nos. 559/2023 and 560/2023 before this Court. On 28. 06.
2023, this Court Coram (R.M. Joshi, J.) passed the follwing
common order and operative part of order reads as under :
ORDER
"a) Petitions are allowed. All impugned orders
are hereby set aside.
b) Parties are directed to appear before the
Trial Court on 04th July, 2023.
c) The cross-examination of both witness i.e.,
witness to be cross-examined and recalled shall
be done within a period of one week from the
appearance of the parties before the trial Court.
d) Trial Court to permit the accused to cross-
examine the complainant only to the extent of
document which is on record and which is not
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referred in earlier cross-examination. It would be
responsibility of the trial Court to ascertain the
said fact and to restrict the cross-examination to
this extent only.
e) In case, Accused or his Counsel fail to
remain present for whatsoever reason before
Court, it is open for the trial Court to close cross-
examination as well as evidence of complainant.
f) This order is passed subject to payment of
cost of Rs. 10,000/- (Rupees Ten Thousand
Only) in each Petitions payable to the
complainant on or before 04th July, 2023.
Learned trial Court to ascertain fact about
payment of cost before proceeding with matter.
g) If cost is not paid within time, this order
shall stands vacated without further reference to
the Court.
h) The amount which is deposited pursuant
to the order passed by this Court on 19th April,
2023 be remitted to trial Court and same shall
be kept in fixed deposit, which will be subject to
the outcome of the proceedings.
i) Trial Court to decide both complaints
being SCC No. 3107/2014 and SCC No. 3108 of
2014 within period of three months from today.
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It is clarified that no further extension on
whatsoever ground shall be granted for the
disposal of the matter.
j) Rule made absolute in above terms.
k) Parties to act upon an authenticated copy
of this order."
10. Subsequent to the above order of this Court, on
10.07.2023, the Complainant filed Exh. 95 Pursis stating that
evidence affidavit of P.W. 2 Exh. 52 may be discarded as he does
not wish to examine the P. W. 2 Mr. Nitin S/o. Satyanarayan
Bangad, the Charter Accountant. Thereafter, on 13.08.2023, the
accused filed Exh. 116 in SCC No. 3107/2014 and Exh. 115 in SCC
No. 3108/2014 and prayed for issuance of witness summons to C.
W. 2 Mr. Nitin Satyanarayan Bangad because he wanted to cross-
examine the P. W. 2.
11. It is the contention of the Respondent/accused that,
on 28-06-2023 this Court passed the order in Criminal Writ
Petition No. 559 and 560/2023 and the accused was permitted to
cross-examine the witness P.W. 2 in order to prove defence,
therefore, it is necessary to cross examine the C.W. 2. However,
the complainant filed Pursis Exh. 95 for discarding evidence
affidavit of P.W. 2. Therefore, on 31.08.2023, the accused filed Exh.
116 in SCC No. 3107/2014 and Exh. 115 in SCC No. 3108/2014
and prayed for issuance of witness summons to (i) the Branch
Manager, Akola Urban Co-operative Bank Limited, Gopichand
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Complex, Jalna Road, Aurangabad and (ii) Mr. Nikhil P.
Kacheshwar, the Chartered Accountant. On 13.09.2023, learned
Magistrate passed the order below Exh. 116 in SCC No. 3107/2014
and Exh. 115 in SCC No. 3108/2014 and thereby, rejected both the
applications.
12. Being aggrieved by said orders, the respondent/
accused filed Criminal Revision Application No. 286 arising out of
order dated 26.09.2023 passed below exhibit 137 in SCC
3107/2014 and Criminal Revision Application No. 296/2023
arising out of order dated 26.09.2023 passed below exhibit 138 in
SCC No. 3108/2014.
13. The complainant appeared in both the revisions and
filed reply which reads as under :
"2. ....It is submitted that the complainant filed complaint
on 11/04/2014 for dishonoured of cheques issued by
accused for the payment of goods supplied to accused by the
complainant. The complainant filed his evidence affidavit on
07/02/2015. Earlier advocate of accused completed his
cross examination on 06/10/2015. Thereafter complainant
submitted evidence affidavit of PW No.2 on 16/11/2015.
But accused failed to cross examine PW No.2 till
04/11/2017. Therefore on that day no cross order came to
be passed and complainant also close his evidence by
passing pursis on 03/12/2017 and matter was posted for
statement of accused U/sec. 313 of Cr.P.C. but accused
continuously remained absent. However on 21/04/2018
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accused filed application for setting aside no cross order,
which came to be allowed on 23/01/2019. Thereafter also
accused failed to cross examine PW No. 2 and therefore trial
court again passed no cross order on 16/09/2022 i.e. after
five years of filing of evidence affidavit. In view of these
situation, it can not be stated that trial court is bias in
rejecting the application filed by accused for setting aside no
cross order or recalling of complainant for further cross
examination, though High Court might have taken liberal
view in this matter.
3. It is further submitted that as per the order of
High Court, both advocate appeared before trial court
and with consent of both advocate, next dates were
fixed as 06/07/2023 for cross of complainant by
accused and on 10/07/2023 for cross of PW No.2.
Accordingly, complainant remained present and
accused cross examine the complainant and during
cross examine some documents filed by the complaint
came to be exhibited and therefore complainant took
decision not to rely on evidence of PW No. 2 and
complainant accordingly passed pursis on
10/07/2023 at 11 am only. However accused was
absent on that day and therefore his advocate filed
exemption application. Of-course no order is required
to be passed by the Hon'ble Court on pursis but court
has to take note of facts stated in the pursis and
continue the further proceeding of the case as per law.
Accordingly trial court noted the facts of the pursis
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and fixed the next date of statement of accused
u/sec.313 of Cr.P.C. Though the matter was time bound
by Hon'ble High Court, the trial court co-operated the
accused for fixing matter after one month on
10/08/2023 as per request of advocate of accused.
Inspite of the such co-operation in time bound matter
by trial court, the accused is blaming the trial court
unnecessary. It is submitted that advocate of accused
never appeared before trial court prior to 2.30 pm on
any date and therefore there is no question of filing
exemption application by accused at 11 am.
4. That, it is further submitted that on 10/08/2023
also on the request of the accused court adjourned the
matter, though matter was time bound. After recording
the statement of accused, matter was fixed on
24/08/2023 for evidence of accused, on this date only
advocate of the complainant sought adjournment and
court granted short time and fixed matter on
29/08/2023. On 29/08/2023 the accused produced
near about 12 new documents, which accused could
have produced on 24/08/2023 if he really desire to co-
operate the court for disposal of the matter in time. It is
denied that accused was ready to give oral evidence on
29/08/2023 and complainant seek date. It is submitted
that on 30/08/2023, accused started his examination
in chief after interval of about 3.30 pm and therefore
there was no sufficient time to complete the cross
examination by the complainant on that day and as
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such matter was fixed just on the next date and on next
date complainant completed the cross examination of
the accused. On the contrary on 30/08/2023 itself
advocate of the complainant asked to submit list of
witness to be examined by accused but the accused did
not submit on that day. Even before commencing cross
examination on 31/08/2023 in the morning session,
advocate of complainant asked to submit list of witness
to be examined by the accused, but accused did not
submit the same. Therefore after interval complainant
submitted written application for same and court also
accordingly gave direction but accused submitted two
application for issuance of witness summons after
completion of the cross examination. Court
immediately passed order on one application to call
witnesses i.e. financial advisor Nikhil, Bank managers
of Akola Urban Bank and City Union Bank. In the said
application, accused himself agreed that witness
summons be handover for service and he will get it
served. On the application to issue of summons to CA
Bangad the complainant filed his say and after hearing
of the parties the Hon'ble court passed order rejecting
the said application on 13/09/2023. Inspite of the
rejection of the said application, the petitioner again
filed another application on dated 18/09/2023 for
calling CA Bangad for cross examination or as court
witness. After hearing both side, the said application
came to be rejected by the trial court on 26/09/2023
and therefore petitioner filed the present revision
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petition in this Hon'ble court."
14. On 08.01.2025, learned Revisional Court passed
impugned common Judgment in Criminal Revision Application
Nos. 286/2023 and 296/2023 and set aside orders dated
26.09.2023 passed by the learned trial Court below Exh. 137 in
SCC No. 3107/2014 and Exh. 138 in SCC No. 3108/2014. The
learned Revisional Court held that, "Interlocutory Order" does not
decide or touch right or liabilities of the parties. It is further held
that, rejection of application by the learned trial Court despite
direction of this Court amounts to be deciding rights of the parties
and it is amount to denial of opportunity to the defence, hence, it
is not interlocutory order.
15. Upon hearing both the sides at length, following
questions are arises for consideration of this this Court as under :
(a) Whether the order passed on an application under Section
311 of Cr.P.C., can said to be interlocutory order or it is final
adjudication of rights of the parties ?
(b) Whether the complainant has right to discard evidence
affidavit of any witness, if said witness does remain unavailable for
further examination-in-chief and cross-examination ?
(c) Whether the accused has right to recall witness of the
complaint under Section 311 of Cr.P.C., in case evidence affidavit of
said witness is sought to be discarded by the complainant due to
non-availability of said witness for testifying contents thereof and
for cross examination?
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16. In order to ascertain the question (a), the learned
counsel appearing for the petitioner/complainant canvassed in
vehemence that, though the complainant filed evidence affidavit of
the CW2 the Chartered Accountant Shri Nitin Bangad, but the said
witness was remain unavailable either for further examination-in-
chief or cross-examination. Further though sufficient opportunities
were granted to the accused for cross-examination of the CW2 but
the accused failed to cross-examine said witness even after laps of
5 years from the date of filing of affidavit. Ultimately, the
complainant filed pursis and closed the evidence.
17. Thereafter, the matter was listed for recording
statement of the accused under Section 313 of Cr.P.C.,however, on
21.04.2018, the accused filed an application for setting aside the
order of no cross, which was granted on 23-01-2019 but again the
accused fail to cross examine the C. W. 2 Mr. Nitin Bargad for
considerable period. Again on 16.09.2022, after lapse of five years
from the date of filing of affidavit of CW2, learned trial Court
passed an order and proceeded both complaints without cross-
examination of CW2 on behalf of the accused. The petitioner/
complainant filed Pursis Exh. 95 on 10.07.2023 stating that, he do
not want to examine the CW2/Nitin Satyanaran Bangad and he do
not want to press evidence affidavit of the CW2 filed at Exh. 52.
Therefore, the accused has no right to call upon the complainant to
examine C.W. 2 and the accused has no right to cross-examine said
witness.
18. It is further canvass on behalf of the complainant that,
the order passed by learned Magistrate below Exh. 137 in SCC No.
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3107/2014 and Exh. 138 in SCC No. 3108/2014 are interlocutory
and no rights of parties have been adjudicated. Therefore, revision
under Section 397 of Cr.P.C. is not maintainable. However, learned
Sessions Court wrongly interpreted the word "Interlocutory order"
and illegally consider about adjudication of right between the
parties. Therefore, prayed for quashed and set aside the impugned
order dated 08.01.2025 passed in Criminal Revision Nos.
286/2023 and 296/2023.
19. In support of this submissions, learned counsel
appearing for the complainant relied on Setu Raman Versus
Rajamanikam, 2009 AIR SCW 2066, wherein an application under
Section 91 and 311 of Cr.P.C, seeking directions for production of
bank passbook, Income Tax Accounts and LDS deposit receipts of
the appellant as also for calling him for cross-examination was
rejected by the learned Trial Court. Being aggrieved by said order,
the accused had filed Criminal Revision before the High Court
under Section 397 of Cr.P.C. The High Court had allowed said
revisions. Being aggrieved by said order, the complainant
approached before the Hon'ble Supreme Court. Under these
circumstances, the Hon'ble Supreme held that, the order passed by
trial Court refusing to call the documents and rejecting the
application under Section 311 of Cr.P.C., are interlocutory orders
and as such, the revision against those orders are clearly barred
under Section 397 (2) of Cr.P.C. It is further observed that, the trial
Court in its common order, had clearly mentioned that the cheque
was admittedly signed by the respondent/accused and the only
defence that was raised, was that he signed cheques were lost and
that the appellant/complainant had falsely used one such cheque.
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The trial Court also recorded the findings that, the documents
were not necessary. This order did not in any manner decide
anything finally. Therefore, both the orders i.e., one of the
application under Section 91 of Cr.P.C. for production of documents
and other on the application under Section 311 of Cr.P.C. for
calling the witness, were the orders of interlocutory nature in
which case, under Section 397 (2) revision was clearly not
maintainable.
20. Per contra, Mr. Biyani, learned counsel appearing for
the respondent/accused has tried to distinguish judgment in case
of Seturaman's (supra) and contended that, when the application
under Section 91 of Cr.P.C. and Section 311 of Cr.P.C. was made
seeking direction for production of bank passbook, income tax
account and the LDS deposit receipts of the appellant and calling
for cross-examination and if said application is rejected it would
certainly amount of curtailing rights of the accused for cross-
examination of the witness. Therefore, the order passed under
Section 311 of Cr.P.C. is amount to final adjudication of right of the
parties. Therefore, the revision under section 397 of Cr.P.C. is not
barred.
21. The learned counsel appearing for the respondent/
accused relied on Himanshu Sharma Versus State of Madhya
Pradesh decided on 28.02.2024 and Maria Margardia Sieueria
Farnandes and others Versus Erasmo Jack de Sequeria (Dead)
through L.Rs., AIR 2012 Supreme Court 1227, however, law laid
down in both cited cases so not applicable to the facts and
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circumstances of the present case.
22. In case in hand, it is prima facie appears that, on
11.04.2014, the complainant lodged both complaints bearing nos.
3107/2014 and 3108/2014. After service of summons, the accused
appeared and his plea came to be recorded long back. It further
appears that, the complainant filed his evidence affidavit on
07.02.2015 and his cross-examination has been completed on
06.10.2015. Thereafter, on 16.11.2015, the complainant filed
evidence affidavit of CW 2 the Chartered Accountant Mr. Nitin
Bangad,however, the accused failed to cross examine the CW 2 till
04.11.2017. It is apparent on face of record that, the accused
availed several opportunities to conduct cross-examination of CW2
but it was in vain. Therefore, ultimately, on 04.11.2017, learned
trial Court passed an order and closed cross-examination of CW 2
on behalf of the accused.
23. It is also not in dispute that, the complainant has filed
Pursis and closed his evidence in both complaints on 03.12.2017.
Therefore, both complaints were riped for recording statement of
accused under Section 313 of Cr.P.C., but the accused was
continuously remain absent. Thereafter, for the first time on
21.04.2018, the accused filed an application and prayed for setting
aside the order of no cross, which was allowed vide order dated
23.01.2019 passed by learned Magistrate but in spite of availing
several opportunities, the accused fail to cross-examine the CW 2
even after lapse of five years from date of filing of evidence
affidavit of CW2 i.e. dated 16.09.2022.
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24. On 18.09.2023, the respondent/accused filed exhibit
137 in SCC 3107/2014 and exhibit No. 138 in SCC No.
3108/2014. An application under Section 311 of Cr.P.C. and prayed
for recall of witness CW2 the Chartered Accountant Shri Nitin
Bangad for further cross-examination as per directions of the
Hon'ble High Court or call the Chartered Accountant Shri Nitin
Bangad as Court Witnesses.
25. On 26.09.2023, learned Judicial Magistrate passed an
order below exhibit 137 in SCC No. 3107/2014 and exhibit 138 in
SCC No. 1308/2014 and rejected both the applications holding
that the complainant failed to produce or made available the
witness CW2 whose evidence affidavit on record but not been
made available for cross-examination to the accused. Therefore,
evidence of C.W. 2 though available on record but it cannot read as
a being evidence. Therefore, no question of examining or cross-
examination of said witness arises under Section 311 of Cr.P.C.
26. It is a matter of record that, in earlier round of
litigation this Court passed an order on 28.02.2023 in Criminal
Writ Petition no. 559/2023 and 506/2023 and had permitted the
respondent/accused to cross-examine the complainant's witness
and scheduled of trial was fixed but the trial has not concluded
trial within the period of three months from the date of order.
Therefore, on request of the learned trail court, on 21.11.2024 this
Court passed an order and extended period of six months being
last chance to conclude the trial.
27. It is submitted that, the prosecution or the
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complainant in a private complaint having right to examine as
many as witness as per list of witness to prove their case beyond
the reasonable doubt. The examination of the witnesses is a
statutory right of the parties to decide controversy between the
parties. However, it is the prerogative right of the complainant/
prosecution to examine or not examine the particular witness,
though evidence affidavit of said witness is filed.
28. In the case in hand it appears that, though the
complainant has filed evidence of CW2 the Chartered Accountant
Mr. Nitin Bangad, on 16.11.2015 but subsequently the complainant
decided not to rely on evidence affidavit of C. W. 2 Shri Nitin
Bangad. Therefore, the accused has no right to cross examine said
witness and the accused cannot compel the complainant to
examine the C. W. 2 and to cross-examine said witness. Therefore,
the order passed in application under Section 311 of Cr.P.C., for
recalling or summoning additional witness does not adjudicate
rights of the parties. Therefore, considering the law laid down in
case of Setu Raman, cited supra, the order passed below
application under Section 311 of Cr.P.C., is an interlocutory order,
hence, revision under Section 397 (2) of Cr.p.c. is not
maintainable. Therefore, the trial Court could have dismissed the
revision as not maintainable. However, learned Dvisional Court
misconstrue the word "Interlocutory order" and wrongly held
about maintenable of Revisions u/s 397 of Cri. P. C., against the
orders passed below exhibit 137 and 138. Therefore, the impugned
order needs to be quashed and set aside on this count alone.
29. In regard to the questions (b) and (c) are concerned,
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it is submitted that, no either party to any litigating cause can
compel either party to examine the particular witness to prove or
disprove their claim or defence. There is no provision either under
the Cr.P.C. or the evidence Act that in any civil or criminal litigation
the adverse party can compel assertive party to call particular
person as a witness. Sec. 137 of Evidence Act, provides for
examination of the witnesses by the party who calls the witness.
Sec. 138 provides that the witnesses shall be first examined-in-
chief, then the adverse party may cross-examined the witness and
then the party calling the witness may re-examine, if desires.
However, if the examination-in-chief of the witness is recorded but
presence of witness cannot be secured due to unavoidable reason
or any reason his examination-in-chief can not be read in evidence.
In case in hand, though the complainant filed evidence affidavit of
C.W. 2 but subsequently, the complainant filed pursis and prayed
for discarding evidence affidavit of C.W. 2 and he does not wish to
examine said witness, therefore, to my view, the accused cannot
compel the complainant to examine or recall of C. W. 2, whose
evidence affidavit already discarded by the trial Court. Therefore,
the accused has no right to recall C. W. 2 under Section 311 of
Cr.P.C..In view of above discussion, the present petitions are
deserve to be granted and impugned orders needs to be quash and
set aside. Accordingly, I proposed to pass following order :
ORDER
i. Criminal Writ Petition Nos. 117/2025 and
118/2025 are allowed.
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ii. The impugned order dated 08.01.2025
passed by learned Additional Sessions Judge -
11, Aurangabad, in Criminal Revision
Application Nos. 296/2023 and 286/2023 are
hereby quashed and set aside.
iii. The order dated 26.09.2023 passed by the
learned Judicial Magistrate First Class, Court
No. 10 below exhibit 137 in SCC No. 3107/2014
and below Exhibit 138 in SCC No. 3108/2014
are hereby restored.
iv. Learned trial Court shall proceed
with the matter expeditiously and shall decide it
within time frame as per order dated
28.06.2023 passed by this Court in Criminal
Writ Petition No. 559/2023 and 563/2023 as
well as the time schedule extended by this Court
vide order dated 21.11.2024.
( Y. G. KHOBRAGADE, J. )
SPC
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