Bombay High Court
Sk Fayyaz Haji Sk Ismail vs The State Of Maharashtra And Anr on 25 September, 2017
Bench: V.L. Achliya
1 Cr.W.P. 1324.2016 - [J]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1324 OF 2016
Sk.Fayyaz Haji Sk.Ismail
Age : 21 Yrs., Occ. :
Agril., R/o : Pension Pura,
Hingoli, Tq. & Dist. : ..... PETITIONER/
Hingoli. [ORI.ACCISED]
VERSUS
1. The State of Maharashtra
Through Police Inspector,
Police Station, Hingoli Town,
Tq. & Dist. Hingoli. ..... RESPONDENT
2. Baban Ganpat Gawali
Age : 66 Yrs., Occ. Agril.,
R/o : Mangalwar Bazar,
Hingoli, Tq. Hingoli, ..... RESPONDENT/
Dist. : Hingoli. [ORI.COMPLAINANT]
...........
Mrs. S.G.Chincholkar, Advocate for Petitioner.
Mr. K.S.Patil, A.P.P. for R - 1 - State.
Mr. S.S.Gangakhedkar, Advocate for R - 2.
...........
CORAM : V.L.ACHLIYA, J.
DATE OF JUDGMENT : 25/09/2017
...........
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2 Cr.W.P. 1324.2016 - [J]
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. By
consent heard finally.
2. By the present petition, the petitioner has
challenged the order dated 14/09/2016 passed by
Additional Chief Judicial Magistrate, Hingoli. By the
impugned order, the learned Chief Judicial Magistrate,
Hingoli has rejected the application moved by the accused
to refer certain documents for the opinion of State
Examiner of Hand Writing.
3. Heard the learned counsel for the petitioner
and respondent No. 2. Perused the impugned order.
4. In nut-shell, it is the contention of the learned
counsel for the petitioner that for just decision of the case,
it is necessary to refer the cheque in question for the
opinion of hand writing expert. It is contended that
though the cheque in question bears signature of the
accused, but the contents of the cheque are not in the
hand writing of accused. The blank cheque with the
signature of accused has been mis-used by the
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3 Cr.W.P. 1324.2016 - [J]
complainant by recording his name and filling in other
contents. In order to establish the defence of the accused,
the cheque in question deserves to be referred for the
opinion of hand writing expert.
5. On the other hand, the learned counsel for
respondent No. 2 submits that filing of such application is
nothing but an attempt to protract the hearing of the
CASE. He submits that the accused has not disputed the
signature on the cheque. Once the signature is not
disputed, it raises presumption that cheque was issued in
discharge of legal liability/debt and it is for the accused to
rebut such presumption. He further submits that the
application filed is premature. The accused has not cross
examined the complainant and court has not called upon
the accused to enter upon his defence. He, therefore,
urge to dismiss the petition.
6. On due consideration of the submissions
advanced, I am of the view that the application filed by
the accused is premature. The evidence of the
complainant is yet to be concluded. The accused has not
cross examined the complainant. The cheque in question
including the writing over the cheque is yet to be
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confronted confronted to the complainant through cross
examination as per defence of accused. The stage to call
upon the accused to enter upon his defence is yet to reach
in the case. In this view, without going into the merit of
the order passed, I am of the opinion that the impugned
order be set aside and the accused be granted liberty to
file fresh application at appropriate stage. Hence, the
following order is passed.
ORDER
[i] The impugned order dated 14/09/2016 is set
aside. The petitioner is granted liberty to make
application after conclusion of recording of the evidence of
complainant and at the stage the Court calls upon the
accused to enter upon his defence. In case, such
application is made, the trial Court is directed to decide
the same on its own merit without influenced by the order
dated 14/09/2016.
[ii] The petitioner is permitted to withdraw the
amount of Rs. 50,000/- [Rupees Fifty Thousand] deposited
in this Court.
[V.L.ACHLIYA, J.]
KNP/Cr.W.P. 1324.2016 - [J]
5 Cr.W.P. 1324.2016 - [J]
