SHASHIKANT VITTHAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The accused facing trial for an offence under the Prevention of Corruption Act has approached this Court for quashing of the impugned order whereby the application of the accused for setting aside no cross order and for recalling PW- 2 for further crossexamination came to be rejected by the learned Special Judge (A.C.B.), Aurangabad in Special (ACB) Case No. 21/2018 by order dtd. 8/1/2024.

(2.) The facts in short are that, the present petitioner is charged with the offence punishable under Sec. 7 and 13(2) r/w 13(1) (d) of the Prevention of Corruption Act. In the trial, PW-2 de facto complainant was examined in the year 2018. His crossexamination started on 16/11/2018. The learned advocate for the respondent prayed for an adjournment on 16/11/2018 and he did not further cross-examined. The matter proceeded further. The evidence of other witnesses was recorded. At this stage, the petitioner filed an application Exh. 90 for setting aside no cross order dtd. 21/12/2023. The respondent/State filed say. It is stated that, the cross-examination started on 16/11/2018. Time was granted at the request of learned advocate for the accused and the matter was posted on 17/12/2018 and since then the cross of the witness is pending. On 22/4/2019 no cross order came to be passed for the first time. The prosecution thereafter examined five witnesses. On 24/11/2022 Exh. 71 application came to be filed for setting aside no cross order. The said application came to be allowed on 30/1/2023. The witness was present on 17/4/2023, however, even on that day the defence could not cross-examine the witness. The witness was therefore discharged. On 4/5/2023 the defence again filed an application Exh. 80 for recalling the witness. That application was allowed on 9/10/2023. However, even thereafter the defence failed to crossexamine the witness till 21/12/2023. The Court, therefore, again passed no cross order for third time. By mentioning these dates, the application came to be opposed.

(3.) The learned Trial Judge considered application Exh. 90. The learned Court categorically recorded the dates and the events. It is considered that, on previous date at around 01.45 p.m., learned counsel for the accused left to attend rites prior to marriage of his niece. At 2.30 p.m. he had a matter before the High Court. In view of that, the matter was taken up at 3.30 p.m. The matter was kept back. However, till 4.30 p.m. the cross-examination could not be done. The learned Court, therefore, passed no cross order. The learned Court further recorded in the order that, the evidence of PW-2 was recorded on 16/11/2018 and again time was sought for cross-examination. The witness was also not feeling well and therefore, the case was adjourned and since thereafter the said witness is not cross-examined in spite of many chances and adjournments. When Exh. 71 application was allowed for recalling of the said witness along with one other witness, the said application was allowed on a condition of payment of cost of Rs.1,500.00 (Rs.One Thousand Five Hundred Only) per day to the witness. On that condition the witness was called. The accused again sought time vide Exh. 76. That application was rejected and the witness was discharged. Since thereafter no endeavour was made to call the witness till filing application under Exh. 80 on 4/7/2023. Though the application was filed on 4/7/2023 it was argued only in October 2023. The said application was allowed subject to cost of Rs.10,000/- (Rs.Ten Thousand only) with further direction to pay cost of Rs.1,500/- (Rs.One Thousand Five Hundred only) per day to the witness. Though the order was directed to be complied within one week, the accused did not comply with the said order. Thereafter, application was filed seeking permission to comply the order. The same was allowed.