{1} Cri. Application No.2481/2010 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2481 OF 2010 Anil Transport Services APPLICANT Through Proprietor Anil J.Momaya Age-52 years, Occ-Business R/o 54, Rokadya Hanuman Colony, Aurangabad VERSUS 1. Smt.Saber Sajjansing Burad RESPONDENTS Age-55 years, Occ-Business R/o Plot No.1, Tridal Apartment, Beside Rokadiya Hanuman Mandir Rokadiya Hanuman Colony, Aurangabad 2. The State of Maharashtra ....... Mr.G.G.Navandar, Advocate for the applicant Mr.N.G.Kale, Advocate for respondent No.1 Mr.S.G.Nandedkar, APP for respondent State ....... [CORAM : A.V.POTDAR, J.] DATE: 30 th September 2011 ORAL JUDGMENT: 1. Rule. Rule made returnable forthwith. Heard finally by consent. 2. Present application, under section 482 of the Criminal Procedure Code, is directed against the order dated 2.6.2010 {2} Cri. Application No.2481/2010 passed by JMFC-13, Aurangabad below Exhibit-50 in SCC No. 7832/2008. By the impugned order, learned JMFC has turned down the request of the applicant to refer the cheques in question for hand writing expert’s opinion. 3. Such of the facts, which gave rise to file the present application, may briefly be stated thus- Respondent No.1 has filed a complaint bearing SCC No. 7832/2008 alleging that the two cheques of Rs.25000/- each, issued by the applicant, in discharge of legal dues, when presented in the bank, came to be dishonoured for the reason “exceeds arrangements”. It is further alleged that thereafter statutory notice was served on the applicant, however he failed to make repayment of the cheque amount and hence the complaint was lodged. 4. It appears that after recording verification of the complainant process was issued against the applicant. It further appears that respondent No.1/complainant examined herself and one witness in support of her contention. Thereafter her evidence {3} Cri. Application No.2481/2010 was closed and even applicant was also examined u/s 313 of the Criminal Procedure Code. The applicant, in answer to question No. 5 during the examination u/s 313 of the Criminal Procedure Code, has taken a defence, which he has also taken in the cross examination of the complainant, that the cheques in question were issued by him to the late husband of respondent No.1 for submission of income tax challans and they were blank and he had not written anything on the same. Admittedly, on the date of filing of the complaint or on the date when the cheques were issued, husband of the complainant was not alive. Therefore, an application was moved by the applicant requesting to refer the disputed cheques for the opinion of the hand writing expert. 5. It appears that vide the impugned order, the application (Exhibit-50) came to be dismissed by the learned Magistrate by observing that “As per Section 20 of the Negotiable Instrument Act, when one person signs and delivers to answer a paper stamp in accordance with law relating to Negotiable Instruments either fully blank and having written thereon at incomplete negotiable instrument, thereby gave prima facie authority {4} Cri. Application No.2481/2010 to holder to make or complete as the case upon the negotiable instrument.” 6. Admittedly, opportunity of fair trial ought to be given to the accused. In this respect, it may be useful to refer the observations of the Apex Court in “G.Someshwar Rao V/s Samineni Nageshwar Rao” 2009 (14) SCC 677, wherein it is observed thus- “Criminal Trial-Documentary Proof-Question as to genuineness of document -Examination by Expert -Complaint under NI Act -Hand writing expert’s Examination qua disputed pronotes and cheques – Pronote and cheque purported to be issued by appellant, allegedly dishonoured-Appellant alleged them to be forged and fabricated – Application for their examination by hand writing expert rejected. Fair trial is a fundamental right of an accused – So far, a prayer for comparison of his signature on a disputed document with his admitted signature, is concerned, it has to be considered on its own merits. Right of an accused u/s 243 (2) not an absolute one. He cannot take recourse thereto for delaying the proceedings. Such an application must be for subserving the cause of justice not for subverting the same. In this case, appellant filed two successive applications. Second one was not maintainable. This, noted to reflect his intention to delay the disposal of the matter. Besides, he could have examined his own expert. He can still do so. Court expressed its hope with certainty, that the Court shall grant him a reasonable opportunity. Even now, Court will be entitled to exercise its jurisdiction u/s 73 of {5} Cri. Application No.2481/2010 Evidence Act, if it so thinks fit and proper. In view of peculiar facts and circumstances, appellant granted opportunity to examine his own expert on his own cost, as directed.” 7. In view of the above observations of the Apex Court and considering the defence taken by the applicant in the cross examination of the complainant as well as in his examination u/s 313 of the Criminal Procedure Code, it is imperative to refer the cheques in question for the opinion of the hand writing expert as denial of opportunity to the applicant would amount to denial of fair trial to him, being an accused. In the premise, the application deserves to be allowed by setting aside the impugned order. 8. In the result, the application is allowed. The order impugned in the present application is hereby quashed and set aside. Rule is made absolute in terms of prayer clause “B” to the application. [A.V.POTDAR, J.] drp/B11/criapln2481-10