Bombay High Court
Bandeppa S/O Mallikarjun Kante vs Madhav S/O Narayanrao Birajdar on 14 October, 2016
Bench: V.K. Jadhav
1 Cri. W.P. 1541/2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1541 OF 2015
Bandeppa S/o Mallikarjun Kante,
Age : 44 years, Occu. Business & Agri.,
R/o Deoni, Tq. Deoni, Dist. Latur .. Petitioner
(Orig. Complainant)
Vs.
1] Madhav S/o Narayanrao Birajdar,
Age : 67 years, Occu.: Agri.,
R/o Near B.R. Gattate, New Jewellers
New Mondha, Shetki Niwas, Udgir,
Tq. Udgir, Dist. Latur ..[Orig. Accused]
2] The State of Maharashtra ig .. Respondents
----
Ms. Supriya L. Pansambal, Advocate h/f Mr. V.D. Gunale,
Advocate for the petitioner
Mr. R.D. Biradar, Advocate for respondent no.1
Mr. A.R. Kale, APP for the respondent/State
----
CORAM : V.K. JADHAV, J.
DATE : 14/10/2016
ORAL JUDGMENT :
Rule. Rule made returnable forthwith. Heard
finally with the consent of parties at admission stage.
2. Being aggrieved by the judgment and order
passed by the Additional Sessions Judge, Udgir dated
25.11.2015 in Criminal Revision Application No.17/2015,
the original complainant has preferred this writ
petition.
2 Cri. W.P. 1541/2015
3. Brief facts, giving rise to the present writ
petition are as follows :-
a] The petitioner is the original complainant in
S.C.C No.147/2013 before the Judicial Magistrate First
Class, Deoni. The petitioner has filed said complaint
against respondent no.1 for having committed an offence
punishable u/s 138 of the Negotiable instruments Act.
After evidence of the petitioner-complainant is closed
and after the statement of respondent no.1-accused under
313 of the Code of Criminal Procedure was recorded,
respondent no.1-accused filed an application Exh.33 in
the said S.C.C. No. 147 of 2013 for referring the said
cheque for the opinion of hand writing expert and
forensic lab for the determination of the age of
signature and hand writing on the cheque.
b] The said application was strongly resisted by
the petitioner-original complainant by filing his say at
Exh.37. The learned Magistrate by order dated 11.9.2015
below exh.33 rejected the said application with costs of
Rs.500/-.
c] Being aggrieved by the same, respondent no.1-
3 Cri. W.P. 1541/2015
original accused has preferred Criminal Revision
Application No.17/2015 and the learned Additional
Sessions Judge, Udgir by his impugned order dated
25.11.2015 in the aforesaid revision allowed the
revision and thereby quashed and set aside the order
passed by the Judicial Magistrate First Class, Deoni
below exh.33 and thus allowed the application Exh.33.
Hence, this writ petition.
4.
The learned counsel for the petitioner-original
complainant submits that, respondent no.1-accused had
filed said application exh.33 only with an intention to
protract the trial. Learned counsel submits that accused
has not denied his signature on the cheque exh.15. The
respondent no.1-accused has raised defence that he
has issued said cheque as a security and handed over
the same to one Shivkumar and that petitioner-
complainant in collusion with said Shivkumar Sontakke
misused the said blank cheque with ulterior motive.
Even, the petitioner-complainant during the course of
his cross examination has also admitted that there is
difference in ink and hand writing of the body of the
cheque compared to the signature thereon. Learned
counsel submits that, in view of the same, expert's
4 Cri. W.P. 1541/2015
opinion in respect of hand writing and age of the ink
with regard to the contents of the cheque and signature
thereon becomes totally irrelevant. Learned counsel
submits that, the Magistrate, Deoni has rightly rejected
the application, however, the learned Additional
Sessions Judge, Udgir without applying mind set aside
the well reasoned order passed by the Magistrate.
5. Learned counsel for the petitioner submits that
in "Mrs. Kalyani Baskar Vs. Mrs. M.S. Sampornam" (2007)2
SCC 258, the issue was altogether different and the
accused in that case has raised the preliminary
objection to the effect that he had not signed the
cheque nor issued the cheque to the respondent-
complainant. Learned counsel for the petitioner submits
that in "T. Nagappa Vs. Y.R. Murlidhar" 2008 DGLS (SC)
599, the Supreme Court has merely placed reliance on the
ratio laid down in Mrs. Kalyani's case (cited supra).
Thus, T. Nagappa's case referred supra cannot be made
applicable to the facts and circumstances of the present
case.
6. Learned counsel for the petitioner in order to
substantiate her contention, placed reliance on the
judgment dated 3rd March, 2015 of this Court of Nagpur
5 Cri. W.P. 1541/2015
Bench in Criminal Writ Petition No. 1010 of 2014
(Brijratan S/o Govinddas Mohta Vs. Vidarbha Nagrik Pat
Sanstha, Hinganghat), wherein this Court has observed
that the complainant too has a fundamental right to fair
trial of the case and even referring T. Nagappa's case,
held that the petitioner therein has already been given
sufficient opportunity to defend himself and now he
cannot be permitted to delay the trial.
7.
Learned counsel for respondent no.1-original
accused submits that, respondent-accused has every right
of fair trial and as soon as his statement under 313 of
Code of Criminal Procedure was recorded by the
Magistrate, respondent no.1-accused had filed an
application exh.33 for referring the said cheque to hand
writing expert for determination of age of the signature
and contents of the cheque. Learned counsel submits
that, in the year 2007 respondent no.1 accused had
issued a signed blank cheque towards security to one
Shivkumar Sontakke, who happened to be a cousin of the
wife of petitioner-original complainant. Said signed
blank cheque came to be issued as a security for an
amount of Rs.10,000/- (Rs. Ten Thousand only). Learned
counsel submits that, petitioner-original complainant in
6 Cri. W.P. 1541/2015
collusion with the said Shivkumar Sontakke misused said
blank cheque and filled up figure Rs.15.00 lacs (Rs.
Fifteen lacs) and filed a false complaint against
respondent no.1-accused. Learned counsel submits that,
in the backdrop of these facts, age of the ink used for
signature and for contents of the cheque is quite
relevant. Learned counsel submits that considering the
same, the Additional Sessions Judge, Udgir, has
correctly interfered in the order passed by the
Magistrate, Deoni and accordingly allowed the
application Exh.33 by setting aside the order passed
below exh.33.
8. Learned counsel for respondent no.1 in order to
substantiate his contentions places his reliance on the
following cases :-
1. T.Nagappa Vs. Y.R. Murlidhar reported in 2008
DGLS (SC) 599.
2. Baburao Madhavrao Munnemanik Vs. Vishwajeet
Pratapsing Pardesh and another reported in 2011
BCI 182.
3. Dada Ghansham Pathak Vs. State of Maharashtra
and another reported in 2010 (3) Bom.C.R.
(Cri.) 789.
4. Nandkumar Rajkumar Harane Vs. Vishwas Vilasrao
Kshirsagar and others reported in 2012 (1)
Bom.C.R (Cri) 232.
7 Cri. W.P. 1541/2015
5. A Nasira Begum Vs. V. Husain Ahmed in Criminal
Revision Case No.257 and 312/2015 (Madras High
Court).
9. In the instant case, as per the defence of the
accused, he had issued only signed blank cheque as
security to one Shivkumar Sontakke, who happen to be
cousin of the complainant's wife, for an amount of
Rs.10,000/- in February, 2007. The respondent-accused
further advanced his case that even after repayment of
the said amount, even though requested number of times,
the said Shivkumar Sontakke avoided to return the
cheque. After lapse of 6 years period, the petitioner-
complainant, in collusion with the witness and the said
Shivkumar Sontakee, with a view to harass the accused
and to extract excess money, himself used the said
signed blank cheque by changing figure of the cheque to
the tune of Rs.15 Lakhs and showing the name of the
petitioner/complainant in whose favour the said cheque
had been issued. Even the respondent/accused has cross-
examined the petitioner-complainant in the line of the
defence as aforesaid and even the petitioner-complainant
has admitted in his cross-examination that there is
8 Cri. W.P. 1541/2015
difference of ink on the disputed cheque in respect of
the signature and writing on the body of the cheque.
10. In the instant case, after examination of the
accused under section 313 of the Code of Criminal
Procedure was over, the respondent/accused has filed an
application Exhibit 33 for referring the said cheque to
the hand-writing expert. Learned Additional Sessions
Judge, Udgir has rightly observed that there is no
question of protracting the litigation because at the
earlier point of time, the respondent/accused moved an
application at Exhibit 33.
11. In the case of "Brijratan S/o Govinddas Mohta
Vs. Vidarbha Nagrik Pat Sanstha, Hinganghat" (referred
supra) and relied on by the learned counsel for the
petitioner, this Court has observed that the petitioner
accused in that case while cross-examining the
complainant, did not even suggest that the disputed
cheque was issued on certain date for an amount of
Rs.25,000/- as a part of the hundi transaction. It was
also not suggested in the cross-examination that the
complainant manipulated the date and the amount by
changing them as 18.10.2008 and amount of Rs.4,25,000/-
respectively. In the backdrop of these facts, this
9 Cri. W.P. 1541/2015
Court has observed that the petitioner in that case now
cannot be permitted to come up with a new story and be
further allowed to send the disputed cheque to an
appropriate forensic laboratory for determination of the
age of the ink of handwriting and the signature
appearing on the disputed chaque. In the facts of the
said case, this Court has also observed that complainant
too has fundamental right to fair trial of the case.
. However, in the instant case, the accused has
not only suggested the complainant his entire defence
but also cross-examined the petitioner-complainant on
the grounds raised by him. The petitioner-complainant
has admitted in cross-examination that there is a
difference of ink on the disputed cheque in respect of
his signature and also in respect of the writing on the
body of the cheque.
12. In the case of "T. Nagappa Vs. Y.R. Muralidhar"
(cited supra), relied on by learned counsel for the
respondent-original accused, in paragraph no.9 of the
judgment, the Supreme Court has made the following
observations :-
"9. The learned Trial Judge as also the High
10 Cri. W.P. 1541/2015
Court rejected the contention of the appellant
only having regard to the provisions of Section
20 of the Negotiable Instruments Act. The very
fact that by reason thereof, only a prima facie
right had been conferred upon the holder of the
negotiable instrument and the same being
subject to the conditions as noticed
hereinbefore, we are of the opinion that the
application filed by the appellant was bona
fide.
The issue now almost stands concluded by a
decision of this Court in Kalyani Baskar (Mrs.)
V. M.S. Sampoornam (Mrs.) [(2007) 2 SCC 258]
(in which one of us, L.S. Panta, J., was a
member) wherein it was held :
"12. Section 243(2) is clear that a Magistrate
holding an inquiry under CrPC in respect of an
offence triable by him does not exceed his
powers under Section 243(2) if, in the interest
of justice, he directs to send the document for
enabling the same to be compared by a
handwriting expert to compare the disputed
signature or writing with the admitted writing
or signature of the accused and to reach his
own conclusion with the assistance of the
expert. The appellant is entitled to rebut the
case of the respondent and if the document viz.
the cheque on which the respondent has relied
upon for initiating criminal proceedings
against the appellant would furnish good
11 Cri. W.P. 1541/2015
material for rebutting that case, the
Magistrate having declined to send the document
for the examination and opinion of the
handwriting expert has deprived the appellant
of an opportunity of rebutting it. The
appellant cannot be convicted without an
opportunity being given to her to present her
evidence and if it is denied to her, there is
no fair trial. "Fair trial" includes fair and
proper opportunities allowed by law to prove
her innocence. Adducing evidence in support of
the defence is a valuable right. Denial of
that right means denial of fair trial. It is
essential that rules of procedure designed to
ensure justice should be scrupulously followed,
and the courts should be jealous in seeing that
there is no breach of them."
13. The ratio laid down in the case of "T.
Nagappa's" case (cited supra) squarely applies to the
facts of the present case.
14. Learned counsel for the petitioner submits that
no purpose would be served by sending the said cheque to
hand-writing expert for determination of the age of the
ink etc. as it is not possible for the hand-
writing expert to opine about the age of the ink and the
age of the signature. However in "T. Nagappa's" case
12 Cri. W.P. 1541/2015
referred supra, the cheque has been directed to be sent
to a expert's opinion on the question whether the
writing appearing in the said cheque on the front page
is written on the same date and time when the said chque
was signed as "T. Nagappa" on the front page as well as
on the reverse, or in other words, whether the age of
the writing on Exhibit P2 on the front page is the same
as that of the signature of "T. Nagappa" appearing on
the front as well as on the reverse of the Cheque
exhibit P-2?
15. In the instant case also, the accused has
raised defence that in the year 2007 he had issued blank
signed cheque in favour of one Sontakke and even though,
the amount was repaid, said Sontakke who happen to be
the relative of the petitioner through his wife, refused
to return the said blank cheque. It is also the
defence of the accused that the petitioner thereafter
misused the said blank cheuqe by changing the figure and
over-writing on the body of the cheque in a different
ink and accordingly filed a false complaint. Thus, the
respondent-accused cannot be convicted without an
opportunity of being heard given to him and if it is
denied, there cannot be any fair trial. In view of the
13 Cri. W.P. 1541/2015
above discussion, I proceed to pass the following
order :-
ORDER
I] Criminal Writ Petition is hereby dismissed.
16. Rule stands discharged.
[V.K. JADHAV]
JUDGE
arp/
