Vijay S/O Pruthviraj Malpani vs Buldhana Urban Co-Op. Credit ...
2017 Latest Caselaw 6730 Bom

                                              1

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR

                    CRIMINAL WRIT PETITION NO.672 OF 2016.


   PETITIONER:                  Vijay Pruthviraj Malpani,
                                aged about 47 years, Occu: Consultancy
                                Work, R/o Plot No.40, Nav-Nirman Society,
                                Pratap Nagar, Nagpur.

                                            : VERSUS :

   RESPONDENT:                  Buldhana Urban Co-Op.Credit Society
                                Maryadit (Multistate), Regd. No.267, through
                                Loan Officer, Shri Prashant Suresh Kulkarni,
                                aged about 46 years, Occu: Service, R/o 
                                Buldhana, Tq. and Distt.Buldhana.

   -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
   Mr.N.S.Khandewale, Advocate for the petitioner.
   Mr.G.S.Lahoti, Advocate for the respondent.
   =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                                                       CORAM:   P.N.DESHMUKH, J.

                                                       DATED:    4th SEPTEMBER, 2017.

   ORAL JUDGMENT:



   1.             Rule. Rule is made returnable forthwith.     Heard finally by

consent of learned counsel of both the parties.

2. Challenge in this petition is to impugned orders passed by

learned Court of Judicial Magistrate (F.C.) Buldhana in Summary

Criminal Case No.970 of 2010, whereby the learned Court of Judicial

Magistrate by its orders passed separately below Exhs.71 and 74 on 7 th

July, 2016 had rejected the same. Petitioner is accused in above

numbered criminal case and by filing application, Exh.71 prayed that

the disputed cheque be forwarded to handwriting expert to seek his

opinion with regard to signature on the said cheque if is of petitioner.

The Court below finding that petitioner in his reply to question Nos.6

and 12 recorded under Section 313 of Cr.P.Code since has not denied

his signature on the alleged cheque, did not find it necessary to refer

same for opinion of handwriting expert and accordingly rejected the

application.

3. Perusal of questions put to petitioner under Section 313 of

Code of Criminal Procedure would reveal that, in reply to question at

Sr. nos.6 and 12, petitioner in clear term has replied that he had never

issued the disputed cheque to the complainant and further that he had

no occasion to open any account with Jijamata Mahila Nagari Sahakari

Bank, Buldhana. It appears to be the case of petitioner that respondent

- Society has opened a false account in the name of petitioner and has

filed a false case.

4. In view of reply of petitioner to question no.6 recorded

under Section 313 of Cr.P.Code, specifically denying that he at no point

of time had issued cheque to respondent, the learned trial Court

appears to have rightly held that the petitioner has not denied the

signature on the alleged cheque. However, point which needs

consideration is, in the impugned order itself, the learned trial Court

while considering application, Exh.71 had considered that from the

record accused denied his signature on the alleged cheque though has

admitted his signature on the loan agreement and other documents.

Impugned order, therefore, reveals that petitioner had denied his

signature on alleged cheque, however, it is stated in the impugned

order that petitioner in his reply to question No.6 put under Section 313

of Cr.P.Code had not denied his signature on the alleged cheque. In

that view of the matter, it is found necessary to refer the disputed

cheque to the handwriting expert for seeking his opinion if it bears

signature of petitioner. In fact, learned counsel for respondent for this

purpose has referred to the decision in the case of S.P.S.Rathore Vs..

C.,B.I. and anr., reported in AIR 2016 SC 4486 where in Para 27 of the

judgment it is held thus -

"27. We are of the opinion that expert evidence as to

handwriting is only opinion evidence and it can never be

conclusive. Acting on the evidence of any expert, it is

usually to see if that evidence is corroborated either by

clear, direct or circumstantial evidence. The sole evidence

of a handwriting expert is not normally sufficient for

recording a definite finding about the writing being of a

certain person or not. A court is competent to compare the

disputed writing of a person with others which are

admitted or proved to be his writings. It may not be safe

for a court to record a finding about a person's writing in

a certain document merely on the basis of expert

comparison, but a court can itself compare the writings in

order to appreciate properly the other evidence produced

before it in that regard. The opinion of a handwriting

expert is also relevant in view of Section 45 of the Evidence

Act, but that too is not conclusive. It has also been held by

this Court in a catena of cases that the sole evidence of a

handwriting expert is not normally sufficient for recording

a definite finding about the writing being of a certain

person or not. It follows that it is not essential that the

handwriting expert must be examined in a case to prove or

disprove the disputed writing. It is opinion evidence and it

can rarely, if ever, take the place of substantive evidence.

Before acting on such evidence, it is usual to see if it is

corroborated either by clear, direct evidence or by

circumstantial evidence."

5. In view of law, it is thus clear that expert evidence as to

handwriting is only by way of opinion evidence and as such is not

conclusive evidence, which needs to be considered with corroborative

evidence on record. In view of facts involved in the petition as well as

law as laid down as aforesaid, petition is liable to be partly allowed as

question of consideration with regard to application, Exh.74, order of

which is also impugned in the present petition would arise only after the

handwriting expert's opinion is on record and is in favour of petitioner,

thereby establishing that the impugned cheque does not bear his

signature. In that view of the matter, only in the case opinion of

handwriting expert to this effect is on record, a question of issuing or

allowing application, Exh.74 to issue summons to the concerned Officer

of the Jijamata Mahila Nagari Sahakari Bank Ltd. Buldhana to produce

documents pertaining to account opening procedure of the petitioner in

Jijamata Mahila Nagari Sahakari Bank Ltd. Buldhana would arise.

6. In the circumstances, petition is liable to be allowed partly,

as per order below.

(i) Learned trial Court is directed to refer disputed cheque

No.066833 dated 22nd July, 2010 drawn on Jijamata Mahila Nagari

Shakari Bank, Buldhana to handwriting expert for comparison of

signature on disputed cheque, if it bears signature of petitioner and to

opine upon the same.

(ii) In view of the fact that trial is stayed from 15 th December,

2016, it is clarified that above procedure be carried out expeditiously

within four weeks from the date of receipt of this Writ and learned trial

judge shall decide the complaint within three months from receipt of

report of handwriting expert.

(iii) On receipt of report of handwriting expert, petitioner is at

liberty to take recourse to file petition, if any, with regard to order

passed below Exh.74 thereby rejecting his application for issuing

summons to the Officers of Jijamata Mahila Nagari Sahakari Bank,

Buldhana to produce documents with regards to procedure of opening

of bank account of the petitioner.

Petition stands disposed of in above terms with no order as

to costs.

JUDGE chute