1 (Cr wp 2332 a/w.2333 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2332 OF 2010 WITH CRIMINAL WRIT PETITION NO.2333 OF 2010 Computer Skill Ltd. ..Petitioners Vs. State of Maharashtra and Anr. ..Respondents ----- Mrs.Pravina Kanani i/b. Mr.Sunil D'Souza for Petitioners Mr.Kishor Jain with Mr. Tushar Goradia and Ms.Nisha Parmar for Respondent No.2 Mr.D.R. More-APP for the State ----- CORAM: V.M. KANADE J. DATED: 14TH OCTOBER, 2010 P.C. 1. Heard the learned counsel appearing on behalf of the Petitioners and the learned counsel for the Respondent No.2 2. The Petitioners are aggrieved by the order passed by the Learned Magistrate, who was pleased to issue process on a complaint filed by the Respondent No.2 for the offence punishable under section 138 of the Negotiable Instruments Act. The said order is challenged on two grounds. Firstly, it is submitted 2 (Cr wp 2332 a/w.2333 of 2010) that the Learned Magistrate has not followed the guidelines laid down by this Court in the case of Amarnath Baijnath Gupta & Anr. v. Mohini Organics Pvt. Ltd. & Anr., reported in 2009 ALL MR (Cri) 189 while recording the verification of the complainant since the verification was in the form of pre-typed statement. Secondly, it is submitted that there was non-compliance of mandatory provisions of section 202 of Cr.P.C. since the Learned Magistrate did not postpone the order of issuance of process, though the Petitioners are residing outside the jurisdiction of the Magistrate's Court. 3. On the other hand, it is submitted by the learned Counsel for the Respondent No.2 that the process was issued on 18th September, 2007 and the plea was recorded on 16.1.2008, the affidavit in lieu of evidence was filed on 6th November, 2008. Thereafter, it was kept for cross-examination and then an application was filed by the Petitioners raising objection about the affidavit in lieu of evidence and it was submitted that the Examination in Chief of the witness should be done in the Court. This application was rejected by the Trial Court on 12.1.2009. Thereafter, they challenged this order by filing the Writ Petition No.293 of 2009. Initially 3 (Cr wp 2332 a/w.2333 of 2010) stay was granted by this Court. However, on 8.7.2010, in view of the judgment of the Apex Court in the case of Mandavi Co-op. Bank Ltd. V/s. Nimesh Thakore reported in 2010 Law Suit (SC) 10, the petition was dismissed. It is, therefore, submitted that the Petitioners firstly having raised an objection only with regard to the filing of the affidavit in lieu of evidence and the said objection having been overruled by the Trial Court as well as this Court they have waived their right to challenge the alleged improper recording of verification and non-compliance of provisions of section 202 of Cr.P.C. 4. In my view, there is much substance in the submission made by the learned Counsel for the Respondent No.2. After having raised an objection to the examination of Respondent No.2's witness and not having chosen to challenge the recording of the alleged improper verification and non-compliance of provisions of section 202 of Cr.P.C., it is not open now for the Petitioners to take the said ground in the second round of litigation. Apart from the said challenge being barred by the principles analogous to the doctrine of constructive res-judicata the said challenge also cannot be sustained since the trial has already begun, the plea was recorded and the affidavit 4 (Cr wp 2332 a/w.2333 of 2010) in lieu of evidence was filed by the Respondent No.2 and the Petitioners participated in the said trial. On both these grounds, therefore, it will not be possible to entertain these petitions. 5. Petitions are,accordingly, dismissed. The Trial Court is directed the decide the criminal case as expeditiously as possible. (V.M. KANADE J.)