Bombay High Court
SHREE SWAMI SAMATH CONSTRUCTION AND ANRversusBHAGYASHREE OMPRAKASH JAISWAL AND ANR
- Decided
- Disposal
- Dismissed
- Bench
- MADHAV JAMDAR
Holding
The High Court held that no new ground was raised and the petitioners’ prolonged delay amounted to a waiver of the right to cross‑examination, so the trial court’s orders dismissing the applications were upheld.
Summary
The petitioners, Shree Swami Samarth Construction, sought to recall the complainant and other witnesses for cross‑examination in six cheque‑bounce cases filed in 2016 under Section 138 of the Negotiable Instruments Act. Earlier applications to set aside the "No Cross Order" had been allowed in 2021, but the petitioners repeatedly failed to appear for cross‑examination, leading to subsequent "No Cross Orders" in 2022 and 2023. After changing counsel, they filed fresh applications under Section 311 of the CrPC in 2025, alleging a new ground for recall, which the trial court rejected, finding no new ground and noting the petitioners' deliberate delay. The High Court affirmed the trial court’s decision, observing that the petitioners had been given ample opportunity and had effectively waived their right to cross‑examination through non‑appearance. Consequently, all the writ petitions were dismissed.
Issues considered
- The petitioners' claim of a new ground for setting aside the "No Cross Order" under Section 311 CrPC.
- Whether the petitioners' repeated absence and delay constitute a waiver of the right to cross‑examine the complainant.
- Whether the trial court erred in rejecting the 2025 applications for recall of the complainant and witnesses.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 311
- Negotiable Instruments Act, 1881 — s. 138, 143(3)
Subjects
- cross‑examination
- Section 311 CrPC
- Negotiable Instruments Act
- cheque bounce
- delay and waiver
- criminal procedure
- writ petition
- High Court
Judgment
27-WP-2946-2026 To Sr No 31 And 36.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.2946 OF 2026
Shree Swami Samarth Construction ...Petitioners
(A proprietary firm) & Anr.
Versus
Bhagyashree Omprakash Jaiswal & Anr. ...Respondents
WITH
WRIT PETITION NO.2948 OF 2026
Shree Swami Samarth Construction ...Petitioners
(A proprietary firm) & Anr.
Versus
Bhagyashree Omprakash Jaiswal & Anr. ...Respondents
WITH
WRIT PETITION NO.2950 OF 2026
Shree Swami Samarth Construction ...Petitioners
(A proprietary firm) & Anr.
Versus
Omprakash S. Jaiswal & Anr. ...Respondents
WITH
WRIT PETITION NO.2951 OF 2026
Shree Swami Samarth Construction ...Petitioners
(A proprietary firm) & Anr.
Versus
Omprakash S. Jaiswal & Anr. ...Respondents
WITH
WRIT PETITION NO.2952 OF 2026
Arjun 1
27-WP-2946-2026 To Sr No 31 And 36.doc
Shree Swami Samarth Construction ...Petitioners
(A proprietary firm) & Anr.
Versus
Omprakash S. Jaiswal & Anr. ...Respondents
WITH
WRIT PETITION NO.2974 OF 2026
Shree Swami Samarth Construction ...Petitioners
(A proprietary firm) & Anr.
Versus
Bhagyashree Omprakash Jaiswal & Anr. ...Respondents
——————
Mr. Manohar S. Mandavkar, for the Petitioners in all WPs.
Mr. Sanjay Nerurkar, for the Respondent.
Mr. Tanveer Khan, APP, for the Respondent-State in WP/2946/2026,
WP/2950/2026 & WP/2952/2026.
Mr. Prasanna Malshe, APP, for the Respondent-State in WP/2948/2026,
WP/2951/2026 & WP/2974/2026.
——————
Coram: Madhav J. Jamdar, J.
Date: June 25, 2026
P.C.:
1. In all these Writ Petitions, the challenge is to the Order dated
12th November 2025 passed by the learned Judicial Magistrate First
Class, 7th Court, Dadar, Mumbai, in an application filed by the
Petitioners i.e. the Accused under Section 311 of the Code of Criminal
Procedure, 1973 (“CrPC”), seeking recall of the Complainant PW-1 and
other witnesses for cross-examination.
Arjun 2
27-WP-2946-2026 To Sr No 31 And 36.doc
2. The details of the Writ Petitions/impugned Orders are as under:
Sr. WP No. Complainant Complaint No. Cheque Date of Exhibit
No. Amount (In Impugned No.
Rupees) Order
1 WP/ Bhagyashree CC 25,00,000/- 12/11/2025 Exhibit-73
2946/2026 Omprakash No.1354/SS/2016
Jaiswal
2 WP/ Bhagyashree CC 50,00,000/- 12/11/2025 Exhibit-74
2948/2026 Omprakash No.1356/SS/2016
Jaiswal
3 WP/ Omprakash S. CC 50,00,000/- 12/11/2025 Exhibit-72
2950/2026 Jaiswal No.1353/SS/2016
4 WP/ Omprakash S. CC 25,00,000/- 12/11/2025 Exhibit-73
2951/2026 Jaiswal No.1352/SS/2016
5 WP/ Omprakash S. CC 25,00,000/- 12/11/2025 Exhibit-72
2952/2026 Jaiswal No.1351/SS/2016
6 WP/ Bhagyashree CC 25,00,000/- 12/11/2025 Exhibit-72
2974/2026 Omprakash No.1355/SS/2016
Jaiswal
3. Mr. Mandavkar, learned Counsel for the Petitioners, submits that
although the earlier application seeking recall of the Complainant PW-1
and other witnesses for cross-examination was rejected on 1st March
2023, a new ground has now arisen and, therefore, it is necessary to set
aside the ‘No Cross Order’ and permit the Petitioners to cross-examine
Complainant PW-1 and the other witnesses. He submits that, after a
new Advocate was appointed, it was discovered, after going through the
record, that the cross-examination of the Complainant conducted in CC
No.1349/SS/2016 and CC No.1350/SS/2016 has remained to be adopted
in the present proceedings.
Arjun 3
27-WP-2946-2026 To Sr No 31 And 36.doc
4. On the other hand, Mr. Nerurkar, learned Counsel for the
Respondent-Complainant, submits that this contention was never raised
earlier. In any case, he submits that the present application has been
filed to delay the proceedings. He further submits that all these
complaints are of the year 2016 and that, since 2021, the Petitioners
have been delaying the proceedings in all these complaints only on the
issue of cross-examination. He submits that the earlier application was
rejected on 1st March 2023 and that, with a mala fide intention, the
application has been filed after a period of more than two years seeking
recall of the Complainant and other witnesses for cross-examination.
5. Before considering the rival contentions, it is necessary to set out
certain factual aspects.
i. All these complaints have been filed either by Ms. Bhagyashree
Omprakash Jaiswal or by Omprakash S. Jaiswal i.e. the husband of said
Bhagyashree. The complaints were filed in the year 2016. Said
Omprakash S. Jaiswal has filed four complaints and Ms. Bhagyashree
Omprakash Jaiswal has also filed four complaints. However, orders
passed in six proceedings are subject matter of these Writ Petitions. The
aggregate cheque amount is of Rs.2.25 Crores.
ii. On 24th September 2021, ‘No Cross Order’ has been passed in all
these complaints.
iii. Thereafter, the present Petitioners filed applications under
Arjun 4
27-WP-2946-2026 To Sr No 31 And 36.doc
Section 311 of CrPC, which came to be allowed by the learned
JMFC/Metropolitan Magistrate on 9th October 2021 by setting aside
the ‘No Cross Order’ by imposing cost of Rs.5,000/-.
iv. A perusal of the Roznama shows that on 25th August 2022,
although the Complainant and the learned Advocate was present, the
Accused remained absent and, therefore, the matters were adjourned
to 22nd September 2022.
v. Thereafter, the matters were again taken up on 6th December
2022. On that date also, the Complainant and the learned Advocate
were present, but the Accused remained absent and, therefore, a ‘No
Cross Order’ was passed.
vi. Thereafter, the Petitioners changed their Advocate and the newly
appointed Advocate filed an application for setting aside the ‘No Cross
Order’ on 6th December 2022. The said application came to be rejected
by the learned Trial Court by Order dated 1st March 2023.
vii. Thereafter, after a period of about two years, on 25th March
2025, again applications have been filed under Section 311 of CrPC in
the aforesaid proceedings seeking recall of the Complainant PW-1 for
the purpose of cross-examination and the said applications have been
rejected by the impugned Orders dated 12th November 2025.
6. It is necessary to consider the impugned Orders in view of the
factual aspects set out hereinabove. The learned Trial Court has
Arjun 5
27-WP-2946-2026 To Sr No 31 And 36.doc
recorded that sufficient opportunities had been granted to the
Petitioners to cross-examine the Complainant PW-1 and that the earlier
application had been rejected on 1st March 2023 and no new ground is
raised.
7. In view of the reasons given by the learned Trial Court, it is
necessary to set out Paragraph Nos.6 and 7 of the earlier Order dated
1st March 2023, which read as under:
“6) The case is for offence punishable under section 138 of
the Negotiable Instruments Act. Record indicates that, the
evidence affidavit of the complainant was filed on
04.01.2019. No cross order was firstly passed on
24.09.2021. Thereafter, the accused made application for
recalling the complainant for the purpose of cross-
examination. The said application was allowed subject to
costs of Rs.5,000/-. Thereafter, the matter was adjourned
on 10 to 12 occasions. However, the accused failed to
proceed with the cross-examination of the complainant.
No cross order was passed on 06.12.2022 as no one
remained present on behalf of the accused when called out
repeatedly.
7) The case is more than six years old. There are constant
directions for expeditious disposal of 5+ years old cases.
Section 143(3) of the Negotiable Instruments Act prescribes
that an endeavour shall be made to conclude the trial within
six months from the date of filing of the complaint. As
mentioned above, the evidence affidavit was filed in the
year 2019. Sufficient time was granted to the accused for
conducting cross-examination of the complainant. The
accused has failed to avail the opportunity of conducting
cross-examination even after his application for recalling
the complainant was allowed on 09.10.2021. Record
indicates that, the accused has delayed the proceeding by
remaining absent on several occasions. As a part of fair
trial, already sufficient opportunities were provided to the
accused. However, the accused has failed to avail the said
Arjun 6
27-WP-2946-2026 To Sr No 31 And 36.doc
opportunity. No case is made out for recalling the
complainant. Thus, the application is liable to be rejected.”
(Emphasis added)
8. Thus, the learned Trial Court has recorded that, despite sufficient
opportunities having been granted, the Petitioners failed to cross-
examine the Complainant. The complaints were filed in the year 2016,
and the proceedings have remained pending on the issue of cross-
examination. The Petitioners have successfully delayed the trial for
about 10 years.
9. Accordingly, in the facts and circumstances, no case is made out
for interference in the impugned Orders.
10. For the above reasons, the Writ Petitions are dismissed.
[Madhav J. Jamdar, J.]
Arjun 7
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