vijay pandurang WaingadeversusMs Titan Stainless India Pvt Ltd

                                                        18 WP 1303-26.DOC

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            CRIMINAL APPELLATE JURISDICTION

                WRIT PETITION NO. 1303 OF 2026


Vijay Pandurang Waingade                                 ..Petitioner
      Versus
M/s. Titan Stainless India Pvt. Ltd. & anr.          …Respondents

Mr. Pravin Mengane a/w Mr. Mohan Kumbhar, for Petitioner.
Mr. Rajiv Hingu a/w Mr. Deepraj Shetye, for Respondent No. 1.

                            CORAM :         N. J. JAMADAR, J.
                            DATE      :     27th MARCH 2026

Oral Order :

1.    Heard the learned Counsel for the parties.

2.    The challenge in this petition is to an order dated 11 th

December, 2025 passed by the learned Additional Sessions

Judge in Criminal Revision application No. 766/2024 whereby

the revision application preferred by the petitioner/accused

against an order passed by the learned Magistrate on 18 th July

2024 thereby rejecting an application preferred by the petitioner

to set aside the no cross-examination order dated 07 th February,

2024, came to be dismissed.

3.    The petitioner is facing prosecution for an               offence

punishable under Section 138 of the Negotiable Instruments

Act, 1881 (‘ the N. I. Act, 1881’).




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4.    On 07th February, 2024, neither the petitioner nor his

Advocate appeared before the learned Magistrate. Thus, the

learned Magistrate passed the following order:-

              “The witness is present. The accused is
              absent. None appeared on behalf of the
              accused.   Matter    is     posted   for   cross-
              examination. However, cross-examination
              on   behalf   of    accused     is   not   being
              conducted. Hence, no cross order is passed
              against accused.”

5.    The petitioner appeared before the Court and filed an

application to set aside the said order. On 16th March, 2024, it

was inter alia contended that, the Advocate for the accused was

engaged in a proceeding before the High Court and, therefore,

he could not appear before the trial Court and the accused also

could not appear before the Court, as he was unwell. It was

further contended that, the accused was residing at Palus; 400

km away from Mumbai.

6.    The application was resisted by the complainant. By an

order dated 18th July, 2024, the learned Magistrate set aside the

said order observing inter alia that, the accused had not made

out a case under Section 145(2) of the N. I. Act, 1881, to permit

him to cross-examine the complainant. Reliance was placed by


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the learned Magistrate on a judgment of this Court in the case

of Somnath Sharad Mandrekar Vs. Patricia Reiter1.

7.    The revision application preferred by the petitioner-

accused against the said order met the same fate.

8.    Mr. Mengane, the learned Counsel for the petitioner,

submitted       that,   on   account     of    genuine   reasons,    the

petitioner/accused could not appear before the Court and cross-

examine the complainant. The accused had also filed an

application      seeking     permission       to   cross-examine     the

complainant under Section 145(2) of the            N. I. Act, 1881. The

accused has a substantial defence to the prosecution. Therefore,

the accused be provided an opportunity to cross-examine the

complainant lest the accused would suffer grave prejudice.

9.    In opposition to this, Mr. Hingu, the learned Counsel for

the Respondent/Complainant, would urge that, the Courts

below have correctly exercised the jurisdiction not to permit the

petitioner to cross-examine the complainant. It was submitted

that, the complaint was filed in the year 2019. The accused did

not cross-examine the complainant till the year 2024, and,

therefore, the learned Magistrate was constrained to pass “no-

cross order”.



1     2023 SCC OnLine Bom 3303
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10.   In any event, the learned Counsel for the respondent

would urge that, the accused cannot seek permission to cross-

examine the complainant as a matter of right unless a specific

defence is disclosed under Section 145(2) of the N. I. Act, 1881.

Reliance was placed on a judgment of the Supreme Court in the

case Meters & Instruments Pvt. Ltd. & anr. Vs. Kanchan Mehta 2.

In the said case while delineating the practice to be adopted for

expeditious conclusion of the trials for an offence punishable

under Section 138 of the N. I. Act, 1881, the Supreme Court

inter alia observed that, the accused, who wants to contest the

case, must be required to disclose specific defence for such

contest. It would also be open to the Court to ask specific

questions to accused at that stage.

11.   Following the aforesaid pronouncement, in the case of

Somnath Mandrekar Vs. Patricia Reiter (supra) , this Court had

repelled the prayer of the accused therein to cross-examine the

complainant as the Court had found that, the accused had not

set out any defence at all.

12.   I have perused the material on record. First and foremost,

it is necessary to note that, the learned Magistrate was not

exercising    the        jurisdiction     whether   to     allow     the



2     (2018) 1 SCC 650
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petitioner/accused to cross-examine the complainant in terms

of the provisions contained in Section 145(2) of the N. I. Act,

1881.

13.     On the contrary, in the order dated 07 th February 2024,

the learned Magistrate has recorded that, the matter was posted

for cross-examination and, since cross-examination was not

conducted on behalf of the accused, “no-cross order” was

passed against the accused. In that view of the matter, the

applications to recall the order of “no-cross” could not have been

rejected, on the ground that, the accused had not made out a

case for exercise of the right of cross-examination. The learned

Magistrate ought to have examined the justifiability of the

reasons ascribed by the accused for his inability to cross-

examine the complainant on 07 th February, 2024. Instead, the

learned Magistrate proceeded to consider whether the accused

had disclosed a specific defence.

14.     At any rate, the Court cannot lose sight of the fact that,

the cross-examination is a valuable right of an accused, nay, a

fundamental facet of a fair judicial process which is guaranteed

under Article 21 of the Constitution of India. The Court can not

be oblivious to the consequences that inevitably ensue, in the

event, the right of cross-examination is unjustifiably denied.


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15.   In the case at hand, it does not appear that, the learned

Magistrate had followed the directions of the Supreme Court

and asked specific questions to the accused, to ascertain

whether the accused has a defence to make for the purpose of

permitting the accused to cross-examine the complainant.

16.   On balance, the Court finds that, the reasons ascribed by

the petitioner in the application to set aside the “no-cross order”

were sustainable. The learned Magistrate as well as the learned

Additional Sessions Judge have adopted a hyper-technical view

of the matter. Therefore, the impugned order cannot be

sustained. Hence, the petition deserves to be allowed.

17.   Thus, the following order:-

                             ::ORDER::

              i)   The Writ Petition stands allowed.

              ii) The impugned order as well as the

              orders passed by the learned Magistrate on

              18th July, 2024 and 07th February, 2024

              stand quashed and set aside.

              iii) The petitioner/accused is permitted to

              cross-examine the complainant.

              iv) The petitioner/accused shall cross-

              examine the complainant on the next


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              scheduled date without fail and as far as

              possible   the    cross-examination        be

              concluded in one session.

              iv) The petitioner/accused shall pay costs

              of Rs. 5,000/- to the Respondent No.

              2/Complainant within a period of one

              week from the date of uploading of this

              order.




                                          [N. J. JAMADAR, J.]




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