Sayad Ayaz Ali S/O Magdum Ali vs Umesh Madanchand Mohta
2022 Latest Caselaw 9587 Bom

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

            CRIMINAL APPLICATION NO. 1238 OF 2022
         Shri Sayad Ayaz Ali s/o Magdum Ali,
         Age 47 years, Occ.: Business, r/o Plot
         No. 24, Alfiya House, Rathod Lay-Out,
         Jafar Nagar, Police Line Takli, Nagpur.
                                                    ... APPLICANT

                               VERSUS
         Shri Umesh Madanchand Mohta,
         Age : about 50 years, Occ. : Business,
         R/o Plot No. 204, Behind State Bank
         of India, Mohta Apartments,
         Chhaoni, Nagpur.

                                                  ... NON-APPLICANT
_____________________________________________________________
       Shri A.R. Dhoble, Advocate for the applicant.
       Shri Rajesh Bachwani, Advocate for the non-applicant.
______________________________________________________________

                        CORAM          :   VINAY JOSHI, J.

                        DATED.         :   21.09.2022.

ORAL JUDGMENT :


           Heard. ADMIT.

2. The matter is taken up for final hearing by consent of

learned Counsel appearing for the parties.

3. The applicant is an accused in Criminal Case bearing SCC

No. 323151 of 2012 for the offence punishable under Section 138 of

the Negotiable Instruments Act, 1881 ('the NI Act'). The applicant has

challenged the order dated 10.08.2022 passed by the Chief Judicial

Magistrate, Nagpur whereby the applicant's urge for appointment of

Handwriting Expert to compare signatures, has been rejected.

4. Learned Counsel for the applicant would submit that the

real nature of transaction was something else than what has been

projected by the non-applicant in his compliant. It is stated that though

the applicant (accused) has received an amount of Rs.7,50,000/-,

however it was not a hand loan, but towards an agreement to sell

executed by him in favour of non-applicant Umesh Mohta and one

Amin Malik. It is contended that the applicant has taken such specific

defence however, as the non-applicant (Complainant) has denied the

signatures of Amin Malik and one witness namely Mohd. Fazal on the

register of notary, comparison of signatures through Expert is necessary.

It is submitted that signatures of Amin Malik and Mohd. Fazal are

available for comparison in another cases filed by them in terms of

Section 138 of the NI Act. Moreover, it is contended that the applicant

has obtained specimen signatures of Mohd. Fazal from his banker for

the purpose of comparison.

5. The other side resisted this application by contending that

though the case was of the year 2012, the applicant is delaying the

hearing of case for one or other reason. It is submitted that both the

persons whose signatures have sought to be compared, are not the

party to the proceeding. Having regard to the summary nature of case,

said exercise is unwarranted.

6. It is the case of the non-applicant that he gave hand loan of

Rs.7,50,000/- to the applicant and for repayment of hand loan a

disputed chaque was issued, which was dishonored. On the other hand,

the applicant came with a defence that he has executed an agreement

to sell jointly, in favour of non-applicant and one Amin Malik. Towards

said transaction, he has received the disputed cheque which according

to him, has been misused by stating that it is towards repayment of

hand loan. It reveals from the reply to the statutory notice and the

cross-examination that such a defence was put to other-side. The

reason for comparison is mainly that the non-applicant (Complainant)

during his cross-examination denied the execution of agreement and

consequential signatures of Amin Malik and witness Mohd. Fazal on the

notarial register.

7. Pertinent to note that, though notarial registry bears the

name of non-applicant (complainant), however admittedly, he has not

signed on the registry. The matter would have been different if the non-

applicant has denied his own signature, but it is the case that he has

denied signatures of somebody, who are not the party to the

proceeding. The entire defence is on the basis of agreement to sell,

which is not available on record rather it is stated that it has been

seized by Income Tax department. It is a matter of appreciation as to

how much weight shall be given to denial of signatures by the non-

applicant of somebody else. Moreover, the applicant has already

examined the notarial public who has ascertained about execution of

documents as well as signatures of the parties.

8. Having regard to above facts, at the fag end of the trial it is

not warranted to undertake the exercise of comparison. The application

carries no merits, hence, stands dismissed. No order as to costs.

(VINAY JOSHI, J.)

Trupti

TRUPTI SANTOSHJI AGRAWAL

23.09.2022 16:14