Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 411 of 2007 Shri Bahubali Zilla Nagari Sahakari Patsanstha Maryadit ...Petitioner V/s. Shri Bharatkumar Narendranath Digee and anr. ...Respondents Mr.U.P.Warunjikar for the Petitioner Mr. Indrajeet Joshi for the Respondents CORAM CORAM CORAM : : : N.D.DESHPANDE,J N.D.DESHPANDE,J N.D.DESHPANDE,J 25th 25th 25th April, 2008 April, 2008 April, 2008 P.C. . Heard Mr. Warunjikar for the Petitioner-original complainant and Mr. Indrajeet Joshi for the Respondent. Admittedly, there is a criminal case No. 458/2003 pending on the file of the Learned JMFC at Jaisinghpur Court. It is under Section 138 of the Negotiable Instrument Act at the instance of the petitioner who is Complainant there. It is popularly called as cheque bouncing case. During the course of hearing it revealed that the Complainant led his evidence and his testimony was subjected to cross-examination by the defence. Accused did not lead oral evidence or documentary evidence so far he has not filed any affidavit or evidence. Even at the time of particulars being read over to him to which he has pleaded not guilty, he did 2 not make any specific defence. 2. Now it is the defence of the accused that the cheque issued is not for the existing liability but by way of collateral security. He is desirous to have hand-writing expert’s opinion about the contents in the cheque because he did not admit those contents except his signature on it. There was application made on behalf of accused by his defence lawyer and the same was allowed by order dated 15-1-2007 by Learned JMFC Court and same order is under challenge. 3. I find considerable force in the submissions of Shri Warunjikar for the petitioner. The criminal case is pending from 2003. It is a summons case. The presumption is on his side. The defence admitted the issuance of cheque and signature on cheque. Accused did not make such defence at the initial stage when particulars were explained and read over to him to which he pleaded not guilty. Having failed to make defence which he ought to have made under Section 251 of Criminal Procedure Code, 1973 because in a summons case no formal charge is required to be framed in law. 4. Thus, it appears that defence adopted a delayed tactics to defer the payments of bounced cheques as submitted before me on behalf of the petitioner. It is 3 true that in a criminal case accused is allowed to take defence and should be given opportunity to lead evidence in defence. Such opportunity is found in the provision itself which accused did not avail earlier as aforesaid. Moreover, accused did not file his affidavit or lead evidence after Complainant/prosecution closed his evidence on all material points. The forwarding document to the expert would not bring out any desired material on the point of collateral security as told by Shri Warunjikar for the Petitioner. 5. To sum up, rule made absolute accordingly in terms of prayer clause (a) and case to proceed further. The Learned trial Court is directed to complete the trial and the same is expedited preferably within three months from the date of communication of this order. (N.D.DESHPANDE,J) (N.D.DESHPANDE,J) (N.D.DESHPANDE,J)