1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.2943 of 2010 Mathew Anthony Muttat ...Petitioner Versus Late Venkatraoji Hire Nagari Sahakari Patsanstha Ltd. & Anr. ...Respondents Mr. Shriram Kulkarni for Petitioners. Mr. S.M.Sabrad for the Respondent No.1 Mr.H.J.Dedia APP for Respondent No.2. CORAM:- R.Y.GANOO, J. DATED:- 4th JULY, 2011. P.C. 1. The respondent no.1 filed complaint against the petitioner in the Court of Judicial Magistrate, I Class, Yeola, being SCC No.677 of 2005 as per Section 138 of the Negotiable Instruments Act. After the evidence of the representative of the Respondent No.1 and the other witnesses on behalf of the Respondent no.1 was over, the petitioner filed an application before the learned Judicial Magistrate, I Class, at Yeola, District Nashik, at Exhibit 41 praying that the signature 2 appearing on the acknowledgement relied upon by the respondent no. 1 for having served the statutory notice under Section 138 of the Negotiable Instruments Act upon Petitioner, should be referred to the handwriting expert. That application was opposed by the respondent no.1 and that learned Judicial Magistrate, First Class, Yeola, District Nashik by his Order dated 5th January, 2009 rejected the same. 2. Being aggrieved by the said Order, the petitioner filed Criminal Revision No.12 of 2009 in the Court of Ad-Hoc Additional Sessions Judge-2, Niphad, District Nashik. The learned Adhoc Additional Sessions Judge-2, Niphad by his Judgment and Order dated 20th June, 2009 set aside the order below Exhibit 41 and remanded the said application for hearing again, as set out in the operative part. Upon remand, the learned Judicial Magistrate First Class rejected the said application by Order dated 7th July, 2009. 3. The Order dated 7th July, 2009 was challenged before the learned Addl. Sessions Judge-I, Niphad, District Nashik in Criminal Revision No.56 of 2009. The learned Addl. Sessions Judge-I, Niphad, by Order dated 28th June, 2010 rejected the said revision. Against this 3 order dated 28th June, 2010 the petitioner has filed this petition. 4. Rule. 5. Rule is made returnable forthwith. 6. By consent of both sides, petition is taken up for hearing. 7. I have gone through the various orders and the record. 8. Learned Counsel Mr. Kulkarni, appearing on behalf of the petitioner pointed out from the cross examination conducted by the petitioner where the petitioner had suggested to the witnesses of the respondent no.1 that the signature appearing on the acknowledgement card is not that of the petitioner. This would clearly go to show that it is the specific stand of the petitioner that the signature appearing on the acknowledgement is not that of his. In my view, mere suggestion to the prosecution witness is not sufficient in a case like this. It is necessary for the petitioner to step into the witness box and give positive evidence in that behalf. Once that is done, the stand of the petitioner will get confirmed and thereafter it would be open for the petitioner to make application to the court praying that the disputed signature namely, the signature appearing on the acknowledgement card does not pertain to the petitioner and that the said disputed signature be referred to the handwriting expert. In my view, the stage 4 at which application at Exhibit 41 was made was premature. In such circumstances, it is necessary for the petitioner to step into the witness box first, state his case on oath and then if thought fit, make an application. In view of above, following order is passed to dispose of the petition. ORDER i) Impugned Order dated 28th June, 2010 passed by the Learned Addl. Sessions Judge-I, Niphad, District Nashik, is set aside. ii) If at all the petitioner claims that the signature appearing on the acknowledgment card does not pertain to him, he shall be at liberty to step into the witness box, give evidence in that behalf and thereafter it will be open for the applicant to make application as was made in Exhibit 41. iii) It is clarified that, this Court has not expressed any view on the order passed by the learned Addl. Judges and the various other orders. This court has not expressed any view on the question whether the signature on the acknowledgment card is that of the petitioner or not. 5 iv) Petition stands disposed of in above terms. The stay granted earlier stands vacated. v) It is clarified that if the petitioner chooses to file an application as was done in the past, the said application shall be decided by the learned Judicial Magistrate, on its own merits without getting influenced by any of the orders passed by the Courts below as also by this Court. vi) The parties shall appear before the learned Judicial Magistrate, I Class, Yeola, District Nashik on 25th July, 2011 so that the said Court can proceed with the case in accordance with the provisions of law and in terms of this Order. vi) The petitioner shall produce the authenticated copy of this order before the learned Judicial Magistrate, I Class, Yeola, District Nashik. (R.Y.GANOO, J.)