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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1053 OF 2013
KAMLAKAR VITHALRAO PADWAL
age 61 years, Occ. Agriculture,
R/o Upala (Makdache)
At present near Old RTP office,
Tambri Vibhag, Osmanabad
Tq. & Dist Osmanabad. Petitioner
VERSUS
1.
THE STATE OF MAHARASHTRA
(Copy to be served upon G.P.
at High Court of Bombay
Bench at Aurangabad.
2. Swaraj Plasto Industries,
W-87, M.I.D.C., Waluj
Aurangabad Through its Proprietor
Ramesh Himmatrao Kawade
age 50 years, Occ. Business,
Bansilal Nagar, Aurangabad.
Tq. & Dist. Aurangabad. Respondents
...
Mr. S.A. Wakure, Advocate for Petitioner
Mr. S.R.Palnitkar, APP for Respondent no.1
Mr. S.A. Ambad advocate for the respondent no.2.
...
CORAM : ABHAY M.THIPSAY, J.
Dated: December 03, 2013 ...
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ORAL JUDGMENT :-
1. Rule. By consent, rule made returnable forthwith. By consent, heard finally.
2. The petitioner is the accused in SCC No.4476/2013, pending before the Judicial Magistrate First Class, Aurangabad.
The said case is in respect of an offence punishable under section 138 of the Negotiable Instruments Act, and arises on a complaint made by the respondent no.2 herein.
3. For the sake of convenience and clarity, the petitioner hereinafter be referred to as 'the accused' and the respondent no.2 as 'the complainant.'
4. Trial is in progress. The affidavit in lieu of evidence of examination-in-chief, of the complainant's witness, has been filed. The accused, thereafter, made an application that the cheque in question and another document i.e. a document purporting to be a receipt dated 26.3.2013, that had been produced by the complainant, be sent to the hand writing expert for examination and his opinion with respect to the handwriting and signature thereon. The accused specifically contended that ::: Downloaded on - 23/12/2013 20:32:08 ::: aaa/- 3 WP 1053.13.odt the cheque was neither written nor signed by him, and that, the receipt was also not signed or written by him. The learned Magistrate, however, allowed the application made by the accused only partly. The Magistrate rejected the prayer to send the cheque to the hand writing expert. He allowed the application only with respect to the receipt dated 26.3.2013 (wrongly referred to as the receipt dated 5.4.2013 in the order). The accused is aggrieved by the order passed by the Magistrate so far as it relates to not sending the cheque to the expert for examination and has approached this Court praying that even the cheque may be directed to be sent to the expert.
5. I have gone through the order passed by the Magistrate.
6. The Magistrate declined to send the cheque to the hand writing expert, on the ground that, the defence of the accused in respect of the cheque did not appear to be probable and therefore, 'there was no need to obtain opinion of the hand writing expert.' These observations by the learned Magistrate are patently improper and contrary to law. What the Magistrate has ::: Downloaded on - 23/12/2013 20:32:08 ::: aaa/- 4 WP 1053.13.odt done in effect is that, he has prejudged the value of the evidence before it was given. By some elaborate reasoning, he has came to the conclusion that, the handwriting and signature on the cheque must be that of the accused only.
7. Since it was the categorical assertion of the accused that he had not written the cheque and that, he had not signed the same, it was necessary for the Magistrate to have permitted the accused to adduce the evidence in support of this contention of the accused. In fact, if the Magistrate has already formed an opinion that the cheque must have been written or signed by the accused only, there was a greater reason for the Magistrate to have permitted the accused to secure and lead evidence contradicting this belief.
8. The value of the evidence that was intended to be adduced by the accused before the Magistrate could be judged by the Magistrate only after the evidence was actually adduced before him. The Magistrate could consider that evidence along with the other evidence as might have been or may be adduced during the trial, to come to a finding as to whether or not the cheque had ::: Downloaded on - 23/12/2013 20:32:08 ::: aaa/- 5 WP 1053.13.odt been written by the accused and/or whether it had been signed by the accused.
9. The impugned order, to the extent that it refuses to send the cheque to the expert for obtaining the opinion with respect to the hand writing and signature thereon, is patently incorrect. However, the stage of adducing defence evidence has not yet arrived. Sending of the cheque to the hand writing expert for his opinion would, in effect, be a step for the collection of defence evidence, which the accused intends to adduce.
Therefore, it is not necessary to interfere in the matter at this stage.
10. It however, needs to be clarified that, after prosecution evidence is adduced and after the accused is examined under the provisions of section 313 of the Criminal Procedure Code, or during the course of such examination, if the accused makes a prayer for sending the cheque to the expert for his opinion, such an application shall be allowed by the Magistrate.
11. The Petition is disposed of with the aforesaid observations. Rule is made absolute accordingly.
( ABHAY M. THIPSAY ) JUDGE ...
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