Bombay High Court
Vilas Ramrao Walakate vs Mr. Suresh Siddhlingappa Wadkar on 5 September, 2024
2024:BHC-AUG:21493
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(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1289 OF 2024
Vilas Ramrao Walakate
Age : 53 years, Occu : Business,
R/o : Bhagwan Nagar, Ambejogai Road,
Latur. ..Petitioner
VERSUS
Mr. Suresh Siddhlingappa Wadkar
Age : 68 years, Occu : Retired,
R/o : Near Amba Hanuman Mandir,
Ambejogai Road, Latur. ..Respondent
...
Advocate for the Petitioner : Mr. Bhandari Anand P.
Advocate for Respondent : Ms. Sundale Rakhi Virbhadra
...
CORAM : S.G. MEHARE, J.
DATED : SEPTEMBER 05, 2024
ORAL JUDGMENT :-
1. Rule. Rule made returnable forthwith. Heard finally
with the consent of parties.
2. The petitioner, who was an accused in the complaint case
under Section 138 of the Negotiable Instruments Act has impugned
the orders of the learned Judicial Magistrate First Class, Latur below
Exhibit-135 passed in STCC No.2138 of 2018 dated 15.03.2024
rejecting his prayer to sent the cheques in dispute and the agreement
Exhibit-62 to the handwriting expert and the order of the learned
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Additional Sessions Judge, Latur in Criminal Revision Petition No.30
of 2024 dated 06.05.2024.
3. The learned Judicial Magistrate by the impugned order
dismissed the application. Against that order, the revision was
preferred before the learned Additional Sessions Judge. The learned
Revisional Court discussing the law laid down by the Hon'ble
Supreme Court in the case of Kalyani Baskar Vs. M.S. Sampoornam,
SC, Criminal Appeal No.1203 of 2006 (Arising out of S.L.P. (Cri.)
No.2639 of 2004 decided on 11.12.2006 held that the accused is
entitled to rebut the case of the respondent. Recording the findings of
the fact, the Court dismissed the petition.
4. Learned counsel for the petitioner has tried his level best
to convince the Court that it is essential to send the document
mentioned above to the handwriting expert for comparing his
signatures to prove its genuineness. He also vehemently argued that
this is the defence available with the petitioner to rebut the
presumptions running against him under the Negotiable Instruments
Act. He referred to the impugned orders and argued that both orders
are against the provisions of law. The defence of the
petitioner/accused cannot be curtailed. The reasons mentioned for
curtailing his right to rebut the presumption are illegal, incorrect and
improper.
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5. The Court has gone through Exhibit-135 on which the
learned Judicial Magistrate as well as the Revisional Court has passed
the order. The very first paragraph of the application shows that the
cheques bearing Exhibit Nos. 77 and 79 were handed over to one Dr.
Sidram Dongarge and Trimbak Savle as a security against the loan
raised by him. However, those cheques have been misused and false
complaint case is filed. The admission of the petitioner that he had
issued the cheque to the third party itself is a evidence that those
cheques bears his signature. In addition to his signature, he has
raised an objection against the contents of the cheque. He states that
the ink of the contents of the cheque differs from the ink of the
signature. Section 20 of the Negotiable Instruments Act speaks on
issuance of the blank cheque. Where one person signs and delivers to
another a paper stamped in accordance with the law relating to
negotiable instruments then in force in India, and either wholly blank
or having written thereon an incomplete negotiable instrument, he
thereby gives prima facie authority to the holder thereof to make or
complete, as the case may be, upon it a negotiable instrument, for any
amount specified therein and not exceeding the amount covered by
the stamp. The plain reading of Section 20 reveals that the person if
signs and delivers the cheques either wholly or partly filled up, is
deemed to authorize that person to fill up the contents of the cheque
to make the instrument complete. The petitioner nowhere pleaded in
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the application Exhibit-135 that whether the cheques were delivered
blank or written by him or third person. So, this deemed provision of
Section 20 would bar him denying the delivery of the cheques. It is
by way of defence, he contended that the cheques were delivered not
issued to the complainant but to the third party. So far as document
Exhibit-62 is concerned, it is a notarized document. It was typed
written and also bears the signature of the petitioner. However, he
denied the signature below Exhibit-67.
6. Section 73 of the Indian Evidence Act provides for the
comparison of signature, writing or seal with others admitted or
proved document. It gives the power to the Court to compare such
two documents. The Court may compare the documents with one
which is proved or admitted. Though the petitioner had denied the
signature below Exhibit-77, those proved false. Those were the
signatures which the petitioner cannot deny. Besides, the bank officer
was examined to prove the signature. He compared the signature
with sample signatures given by the petitioner while opening the bank
account. There was ample evidence on record to compare the
signature below Exhibit-62. Besides this, the notary was also
examined who has also proved his signature. However, the law is
settled that the Court should be slow to compare the disputed
document with the admitted document for comparison although
Section 73 empowers the Court. Although section 73 specifically
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empowers he Court to compare the disputed writings with the
specimen/admitted writings shown to be genuine, prudence demands
that the Court should be extremely slow in venturing an opinion on
the basis of mere comparison, more so, when the quality of evidence
in respect of specimen/admitted writings is not of high standard. It
is yet to be done by the Trial Court.
7. Reading the facts and above provisions, this Court is of
the view that sufficient evidence was produced before the Court. The
documents executed before the notary public has some weightage.
The notary also proved his signature. So, it cannot be said that the
evidence as regards the signature is of no high standard. This may be
an attempt to protract the trial. The Court should consider the pains
of the other side. In most of the cases under Section 138 of
Negotiable Instruments Act, the matters are protracted and at the fag
end such applications are filed. The Court does not mean to say that
the concerned person has no right to file such an application, it may
be filed anytime. But the conduct could not be ignored. The
document Exhibit-62 was the typed written document. Therefore, its
contents cannot be compared. Prima facie, there was material before
the Court to reject the prayer and this Court does not find any
illegality and perversity in the impugned orders. Hence, the petition
stands dismissed. No order as to costs.
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8. Rule stands discharged.
(S.G. MEHARE, J.)
Mujaheed//
