1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO. 646 OF 2008 Shri Jagdish Venishankar Joshi, age 65 yrs, Occ. Business, R/o Amalner, Tq. Amalner, District. Jalgaon. Petitioner. (orig. accused No 1) v e r s u s 1. The State of Maharashtra, Copy to be served P.P. High Court of Judicature of Bombay, Bench at Aurangabad. 2. Smt. Shantabai Onkar Shirsath, age 65 yrs, Occ. Household, r/o Pharshi Road, Amalner, Tq. Amalner, Dist. Jalgaon. Respondents. (orig complainant) .... Mr. A.S. Bajaj, Advocate for the applicant. Mrs.R.D. Reddy, APP for the respondent. .... CORAM: V.R. KINGAONKAR, J. DATE : 27th July, 2009. PER COURT :- 1- Rule. Rule made returnable forthwith and heard finally. 2- The petitioner is facing criminal case bearing RCC No.129/2004. The criminal case for offence of 2 cheating etc is filed on basis of police report and same is pending before the learned magistrate. The respondent No.2 is original complainant. The respondent No.2 alleged that the petitioner and co- accused Meghraj Dabhade, who was subsequently discharged by the learned Magistrate, manipulated and prepared a false ‘sauda pavti’ (agreement of sale) dated 03.02.2000. She alleged that she is the owner of final plot No.199, subplot No.3. She further alleged that the petitioner executed the sauda pavti in her favour though the plot was not registered in his name. She further contended that the petitioner has signed the sauda pavti dated 03.02.2000 and cheated her by mis-representation that he is the owner of the said plot. He obtained an advance amount of RS.10,000/- from her at the relevant time, though he has no concern with the said plot. The petitioner denied his signature on the agreement of sale styled as “Sauda Pavati” dated 03.02.2000. In the course of investigation, the disputed document i.e sauda pavti along with specimen signatures of the petitioner were sent to the office of hand writing expert attached to 3 C.I.D., M.S. Office, Aurangabad. A report was received by the Investigating Officer which has been filed along with charge sheet. The report of hand writing expert shows that the signature on the sauda pavti is not that of the petitioner. 3- Taking exception to the report of hand writing expert, the respondent No.2 filed an application (Exh. 15) and urged that disputed document along with specimen signatures of the petitioner may be again sent to the hand writing expert attached to the CID office, at Pune. She submitted that there are suspicious circumstances are regards manner in which the signature of the petitioner was obtained for the purpose of comparison and document which was sent to the hand writing expert attached to C.I.D., office Aurangabad. She further expressed certain doubts about the investigation because the report of the hand writing expert was not kept in a sealed envelope but was filed along with charge sheet with the petitioner could have known. Hence, she requested the court to sent the disputed document again along with specimen signatures of the petitioner to another authority i.e hand writing 4 expert CID crimes, Pune. The request is granted by the Ld. Magistrate vide the impugned order dated 05.09.2008. Hence, the petition. 4- Heard the learned counsel for the parties. 5- Mr. Bajaj, who pointed out that application was moved by he respondent No.2 and not by the A.P.P. who was conducting the prosecution. He submit that there is no foundation to raise doubt regarding veracity of the hand writing expert which is already on record. He submits that a private complainant cannot be allowed to file such application in a state case. As against this, Mr. Kutti pointed out that application was moved through Advocate of the respondent No.2 and Learned APP gave no objection to the grant of said application. He invited my attention to certain observations in J.K. International V/s State (Govt. of NCT of Delhi ) and others reported in (2001) 3 Supreme Court Cases 462 and criminal application No.1299/2001 decided by this Court in proceedings under section 482 of the Cr.P.C. It is observed by this Court that “the magistrate was justified in allowing the complainant to engage an Advocate of his choice or to try the case 5 himself.“ It is observed that in view of legal position of section 302 (2) of Code of Criminal Procedure, the application could be entertained by the learned Additional Sessions Judge. It is not necessary to deal with both the case laws. For, when the application was moved by the respondent No.2, there was no objection on the part of the Ld. APP who was conducting trial before the learned Magistrate. In other words, the Ld. APP accepted the position that Advocate of the complainant/respondent No.2 gave such an application with a view to assist the prosecution. 6- The impugned order reveals, however, that the learned Magistrate, did not assign any reason as to why it was found necessary to again send the disputed document along with specimen signatures of the petitioner to another hand writing expert. The Ld. Magistrate simply reproduced the contention of the respondent No.2 and observed : “I find substance in the application of the complainant” hence the application was granted. The impugned order is bereft of legal reasons. The trial is yet to commence.Unless there is some material available to 6 substantiate doubt raised by the respondent No.2/ complainant, it was not proper to allow the application. The learned Magistrate should have awaited the progress of the trial in order to examine whether really the Investigating Officer did not take care while sending specimen signature of the document for opinion of the hand writing expert. The Ld. Magistrate may examine the dispute and admitted signatures as provided under section 73 of the Evidence Act. He may, consider the material which is placed on record and then only, if appropriate foundation is laid, such an unusual requests be considered by the Ld. Magistrate. The application seems to have been granted just for asking. In this view of the matter and for want of tangible reasons, I find that the impugned order is unsustainable. 7- It may be noticed that the respondent No.2 only suspected about the manner of sending documents and course adopted by the prosecution because the report of the hand expert was not kept in a sealed envelope. That cannot be any reason to raise doubts. When charge sheet is filed the copy of the hand writing 7 expert is required to be given to the accused/petitioner and and as such it could not be kept in an envelope as confidential record. 8- In the result, petition is allowed. The impugned order is quashed. Rule made absolute. The prosecution may apply or the learned Magistrate may suo-motto consider similar request only if proper material is placed on record to express reasonable doubt about the manner of sending the specimen signatures of the petitioner and the disputed document to the hand writing expert. (V.R. KINGAONKAR, J.) aaa/646.08 ***