At Present Near Old Rtp Office vs The State Of Maharashtra
2013 Latest Caselaw 264 Bom

     aaa/-                            1                          WP 1053.13.odt

             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

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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

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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

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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 ...