-1- bpk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 416 OF 2008 Mrs. Ranjan Vilas Dhankawade : Petitioner v/s Prakash Jathamal Oswal and others: Respondents M.T. Pise Advocate for petitioner Y.M. Nakhawa APP Shri Ronak Shah Advocate for respondent no.1. Coram : A.S. Oka,J. Date : 16.4.2009 P.C. 1. Heard the advocate for the petitioner. The Petitioner has been arraigned as an accused in the complaint filed by the first respondent for the offence punishable under section 138 of Negotiable Instrument Act, 1981. (Hereinafter referred to as said Act). An application was made by the applicant praying that the cheque in dispute be referred to a handwriting exert for seeking his opinion as regards the hand writing of the contents of the cheque. The case of the petitioner is that though the signature on the cheque is not disputed the cheque was a blank cheque and details have been filled in by the first respondent. The said application has been rejected by order dated 24th October 2007. The learned Magistrate -2- held that as petitioner accused has admitted signature on the cheque, it was for the petitioner accused to lead evidence to establish her defence. 2. Learned counsel appearing for the petitioner has relied upon decision of this court dated 23rd March 2005 in criminal writ petition no. 1966/2005 (Mira Printers & ors. vs Mrs. Sushilla Prabhakr Khirid and ors). He submitted that in a similar case this court has directed that a cheque in dispute should be referred to handwriting expert. He submitted that the first respondent has denied in the cross examination that he had filled in the cheque. He, therefore, submitted that impugned order is illegal. 3. The learned counsel appearing for the first respondent submitted that it was never the case of the first respondent that the contents of the cheque have been filled in by the petitioner. He submitted that the decision relied upon by the petitioner has no application. 4. I have carefully considered the submissions. Perusal of the judgment of this court in the case of Mira Printers and others(supra) shows that this court -3- has not laid down as a proposition of law that in every case where an accused in a prosecution u/s 138 of the said Act raised a contention that the contents of the cheque are not filled in by him, the cheque has to be referred to handwriting expert. The judgment in the said case has been delivered in the peculiar facts of the case before this court. 5. In the present case it is not the case made out by the first respondent that the contents of the cheque have been filled in by the petitioner. Learned Judge in the impugned order has observed that the petitioner has every opportunity to lead defence evidence for proving his defence. Considering the factual controversy no fault can be found with the impugned order considering the stage at which it was passed. After the petitioner leads defence evidence, it is always open for the petitioner to make a fresh application if an occasion for filing the same arises. Subject to what is observed above writ petition is rejected. (A.S. Oka,J.)