1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2203 OF 2008 Maruti Dnyanoba Pawar Petitioner versus Shivaji Shahaji Nikam and another Respondents Umesh R. Mankapure for petitioner. Ms.A.T.Zaveri, APP for the State. Amit Sale for respondent no.1. CORAM : A.S.OKA, J. DATE : 13th July 2009 PC :- 1. Heard learned counsel for the petitioner and learned counsel for the first respondent. The petitioner is the complainant in a complaint filed under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act") to which the first respondent has been arraigned as an accused. 2. An application was made by the 1st respondent-accused at Exhibit-41. In the said application the case of the accused is that the transaction was between the son of the first petitioner and the accused. Further case is that the son of the petitioner had obtained a blank cheque from the 1st respondent and that the 1st respondent had not signed the 2 cheque. It is alleged in the application that the son of the petitioner was making entries of the amounts received on the back side of the cheque which is visible from the xerox copies of the cheque produced by the petitioner-complainant along with the complaint. It is stated that however on the original cheque it appears that the writing appearing on the rear side of the cheque has been erased by applying whitener. The prayer made by the first respondent (original accused) is that an action be taken under section 340 against the petitioner and the xerox copy of the cheque produced by the petitioner as well as original cheque produced by the petitioner be sent to the hand-writing expert. The said application was rejected by the learned Magistrate. A revision application was preferred by the first respondent before the Sessions Court. By the impugned order the revision application has been allowed and following operative part of the order has been passed :- "ORDER Revision application is allowed. The order below Ex.41 in Summary Criminal Case No. 53/2006, passed by 2nd Joint J.M.F.C; Vita, dated 30.11.2007 is hereby set-aside. J.M.F.C. is directed to decide the said application (Ex.41) on merit, after considering the observations made by this Court. R. and P. along with a copy of this Judgement be sent to lower Court." 3. The submission of the learned counsel for the petitioner- complainant is that the alleged writing on the rear side of the cheque does 3 not exist on the original. He pointed out that there was no occasion for the learned Additional Sessions Judge to make observations which he had made in paragraph nos.13 and 14 of the impugned order. He pointed out that the application at Exhibit-41 has been remanded to the Trial Court with a direction to decide the same in the light of the observations made by the Sessions Court. He pointed out that in view of the observations made by the Sessions Court in the impugned judgement and in particular paragraph no.13, the learned Trial Judge is bound to take into consideration the observations in paragraph 13 made by the Sessions Judge while deciding the application at Exhibit-41. He submitted that in any event, there was no reason to interfere with the impugned order. He pointed out that one of the prayers in the application at Exhibit-41 made by the first respondent was for sending the xerox copy of the cheque to the handwriting expert and the learned Additional Sessions Judge had already observed that it is not necessary to send the cheque to the handwriting expert. He, therefore, submitted that the order of remand was uncalled for and the revision application ought to have been dismissed. 4. The learned counsel for the first respondent-accused supported the impugned order by pointing out that the xerox copy of the cheque was produced by the petitioner-complainant himself along with the complaint which shows writing on its rear side. He submitted that while producing the cheque the said writing was erased by the first respondent. He submitted that the learned Additional Sessions Judge was justified in passing the order of remand. 4 5. I have carefully considered the submissions. A perusal of the application at Exhibit-41 shows that there were two prayers made in the said application. One was of referring the documents to the handwriting expert and the second was for initiating an action under section 340 of the Code of Criminal Procedure, 1973. As far as second prayer is concerned, in my view, the said prayer could not have been considered unless parties lead evidence in the complaint. Therefore, the said prayer cannot be decided before the parties lead evidence in the complaint and the said prayer will have to be considered when the learned Judge decides the complaint finally. 6. As far as prayer for sending the documents to handwriting expert is concerned, the observation made by the learned Sessions Judge in paragraph no.17 is in a different context. The contention of the first respondent seems to be that the entries of certain amounts have been made by the son of the complainant-petitioner on the rear side of the cheque as the transaction was between the son of the petitioner and the first respondent and the said entries have been erased before filing the original cheque on record. Thus, the contention of the first respondent appears to be that the entries made on the rear side of the cheque are in the handwriting of the son of the petitioner and for that purpose perhaps a request was made for referring the document to the handwriting expert. The request seems to be for seeking opinion as regards the handwriting appearing on the back side of xerox copy of the cheque. Therefore at this 5 stage, it cannot be said that the prayer made by the first respondent- accused for sending the documents to handwriting expert cannot be considered by the Trial Court. The said prayer will have to be considered on its own merits. 7. The prayer for referring the documents to the handwriting expert will have to be considered after the petitioner-complainant leads the evidence. As far as second prayer for an action under section 340 is concerned, the same will have to be considered along with the complaint. 8. Hence, II pass following order :- (a) The impugned order is modified. It is directed that the prayer made by the first respondent in Application at Exhibit-41 for an action under section 340 of the Code of Criminal Procedure, 1973 shall be considered along with the complaint; (b) As far as prayer in the application at Exhibit-41 for referring the document to the handwriting expert is considered, the same shall be considered by the learned Judge on its own merits after the petitioner- complainant adduces his evidence; (c) It is clarified that none of the observations made in the orders passed by the learned Magistrate as well as the learned Sessions Judge shall be considered as a concluded finding and all contentions of the 6 parties on both the prayers made at Exhibit-41 are expressly kept open. It is also clarified that there is no direction issued by the Sessions Court to decide the application at Exhibit-41 in a particular manner and it is left for the Trial Court to decide the said application on its own merit; (d) Subject to aforesaid modification, the writ petition is disposed of. (A.S.OKA, J.)