cran52.10 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 52 OF 2010 Sau Sonal w/o Arvind Khadar Age 40 years, Occ. Business, R/o. Subhash Chauk, Amalner Tq. Amalner, Dist. Jalgaon ...Applicant Versus 1 The state of Maharashtra Through the Secretary, Home Department Mantralaya, Mumbai 2 Deepak s/o Pralhad Bhavsar, Age 52 years, Occ. Business, R/o. Tambepura, Amalner Tq. Amalner, Dist. Jalgaon ...Respondents ..... Mr. R.R. Mantri, advocate for the applicant Mr. G.R. Ingole, A.P.P. for respondent No.1 Mr. Bharat R. Warma, advocate for respondent No.2 ..... CORAM: A.V. POTDAR, J. DATED: 4TH MAY, 2011 JUDGMENT:- 1 In this matter, Rule was issued by this Court on 2.7.2010. By the present application, the applicant original complainant has approached this Court under Section 482 and 483 of Cr.P.C. questioning the correctness of order passed by the learned J.M.F.C. Amalner, District Jalgaon on an application Exh.94 which was filed by cran52.10 -2- the respondent and was allowed by the learned lower court. 2 Such of the facts, which are necessary for just decision in this application, can be summarized as follows:- i) The applicant herein has filed a private complaint before the learned J.M.F.C. Amalner under Section 138 of Negotiable Instrument Act 1881 on the ground that the cheque issued by the respondent No. 2 herein dated 12.2.2007 drawn on Amalner Urban Co-operative bank bearing No. 044152 in the sum of Rs.9,59,000/- was deposited by the applicant herein on 17.2.2007 with Jalgaon Janta Sahakari Bank, Branch Amalner. The said cheque was returned back by the bankers of the applicant as dishonoured on 19.2.2007 with a remark “insufficient funds”. Thereafter, a legal notice was issued by the applicant on 26.2.2007 informing the respondent No.2 about dishonour of cheque deposited in her bank. It appears that the said notice was served on the respondent No.2 on 28.2.2007 and as the respondent had not taken cognizance of the legal demand notice issued by the applicant on the respondent before institution of the complaint, hence, the complaint came to be lodged before the Learned J.M.F.C. Amalner. ii) It appears that after issuance of the process the respondent cran52.10 -3- herein appeared in the said complaint. After plea of the respondent was recorded, the parties were put to the trial and that the evidence of the complainant was closed on 2.2.2008. It is a matter of record that thereafter the respondent was examined on 3.10.2008 under section 313 of Cr.P.C. It further appears that in his defence, the respondent examined himself and two other witnesses. It further appears that after evidence of defence witnesses were over, an application was moved on 10.10.2009 at Exh.94 under Section 243 r.w. Section 45 with three prayers with a request that the disputed cheque bearing No. 044152 be referred to the handwriting expert of C.I.D. for his opinion to ascertain three facts, i) whether the contents of cheque and signature on the cheque are put by one person, ii) what is the age of the signature on the cheque so also the age of the writing on the cheque and lastly iii) whether the signature on the cheque and the particulars of the cheque were in the handwriting of single person. iii) It appears that after hearing both sides, the learned J.M.F.C. allowed the application and referred the disputed cheque to the handwriting expert for his opinion on the above referred three points with further directions that only the accused to give his specimen handwriting before referring the disputed documents to obtain opinion of the handwriting expert. 3 Being aggrieved by the said order passed below Exh.94, by the cran52.10 -4- learned J.M.F.C. Amalner vide his order dated 22.12.2009, the original complainant is before this Court. 4 I have heard the learned counsel for the applicant followed by the submissions of the learned counsel for the respondent. During the course of submissions, it is urged that even though the complaint is lodged in the year 2007, it is protracted at the hands of the respondent which fact can be revealed from the copy of note sheet placed before this Court by pointing out facts about dates as to when the evidence of the complainant was over so also the date on which the defence evidence was over and at the last stage this application is moved. It is further urged that even though the Rule was issued in this application on 2.7.2010 and interim relief was granted in terms of prayer clause “C”, it is urged that there is no stay to the proceeding before the lower court, no steps were taken by the respondent to proceed with the trial. In the premises, according to learned counsel for the applicant, the application which is allowed by the lower court is nothing but to protract tactics at the hands of respondent No.2 to prolong the trial. Hence, the application to be allowed and the order passed by the learned J.M.F.C. be quashed and set aside. 5 As against this, learned counsel appearing for the respondent No.2 relying on the ratio laid down in the matter of T. Nagappa Vs. cran52.10 -5- Y.R. Muralidhar [2008 (6) Mh.L.J 515] urged that perusal of the record shows that the defence put by the respondent in the trial since beginning that he has replied the demand notice and stick up the stand in the cross examination of the complainant and also brought his defence by way of examining three defence witnesses. According to him, his turn to examine defence witnesses so also to apply to send the disputed documents for reference of the hand writing expert only come into play after he examined under section 313 of Cr.P.C. In the premises, it cannot be inferred that he has prolonged and protracted the litigation and this false application is given by the respondent before the trial court and present application be dismissed. 6 In the light of the submissions made across the bar, I have perused the record. It is a matter of fact that the notice issued by the applicant before institution of the complaint dated 26.2.2007 was replied by the respondent by his reply notice dated 13.3.2007. Unfortunately, this reply notice was not before the court who had issued process. Perusal of para 5 of this reply notice discloses that stand is taken by the respondent that the cheque book containing disputed cheque was lost in the month of March, 2005, for which he has lodged complaint on 12.3.2005 with police station Amalner and have also intimated to the Urban Bank Amalner. He has further alleged in the said reply notice that because of his relations with the applicant cran52.10 -6- herein some cheque and other valuable remained with the applicant, a possibility cannot be ruled out that the applicant has misused those cheques. Perusal of the cross examination of the complainant in para 10, suggestion was given that cheque book was lost for which complaint was lodged with the police station so also with the Bank in the year 2005, the applicant/complainant have misused those cheques. No doubt, she has denied this suggestion. After his examination the respondent has also examined bank officials so also the concerned police official from Amalner police station. Exh.70 is acknowledgment given by Amalner police where the complaint was lodged about missing of cheque book by the respondent in the year 2005. The Bank official also confirmed that the bank was intimated by the respondent about missing of cheque book in the year 2005. These two facts are clear since beginning on receipt of legal notice the stand was taken by the respondent that cheque book was missing since 2005 and the cheque from that missing cheque book was misused in the year 2007. Now it is to be considered that the respondent has not disputed his signature on the cheque but it is his stand that the particulars of the cheque filled in the cheque are not in his handwriting. As against this, it is the stand taken by the complainant that cheque was issued by the respondent which is a complete instrument. cran52.10 -7- 7 At this juncture it is useful to refer to the observation of the Apex Court in the matter of T. Nagappa (supra) wherein it is observed by the Apex Court that right of the accused to fair trial, is a right to defend himself, the right to defend oneself and for that purpose to adduce evidence is recognized by section 243(2) of Cr.P.C. What should be the nature of evidence is not a matter which should be left only to the discretion of the Court. It is the accused who knows how to prove his defence. It is true that the Court being the master of the proceedings must determine as to whether the application filed by the accused in terms of sub section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the Court for obtaining its assistance with regard to summoning of witnesses etc. If permitted to do so, steps therefor, however, must be taken within a limited time. These observations are based on the earlier observations of the Apex Court in the matter of Kalyani Baskar (Mrs) Vs. M.S. Sampoornam (Mrs) (2007 (1) Mh.L.J.=(2007) 2 SCC 258. 8 At this juncture, it is also useful to give further reference of the observation of the Apex Court in the matter of G. Someshwar Rao Vs. Samineni Nageshwar Rao and Anr. [2009 (14) SCC 677] wherein it is observed that sending of documents for expert opinion in case of cheque bouncing and proceeding initiated under Section 138 cran52.10 -8- of Negotiable Instruments Act, 1881 when the accused denying execution of disputed documents, whether court obliged to permit accused to take all defences to establish a document as not genuine. The prayer of the appellant for sending exhibits for examination by handwriting expert, trial court rejected the plea in view of possibility of variance because of time gap between execution of two signatures. It is further observed that right of accused to lead evidence in his defence is not absolute. Such right has to be used only for furthering the cause of justice but not subverting it. Accused cannot take recourse to such right for purpose of delaying proceedings. On facts, accused filing successive applications for referring the documents to the opinion of the expert such opportunity to be offered to the accused. 9 In the light of the observations of the Apex Court which I have referred to in the matter of T. Nagappa (supra) so also in the matter of G. Someshwar Rao (Supra) it is observed by the Apex Court that if defence is put up by the accused in the case under Section 138 of Negotiable Instruments Act, whether the accused admit his signature on the exhibited documents but disputed the particulars of exhibited instruments and defence is taken that the particulars are filled up as suitable and convenient to the complainant then in such case, the documents required to be referred to give chance of fair trial to the accused and such liberty cannot be denied. cran52.10 -9- 10 The only point remains whether these are delaying tactics played by the applicant or not? At this juncture, it is not proper for this Court to comment on this issue. Now the question remained for consideration is that in view of defence taken by the accused, relief granted by the learned lower Court is proper or it requires modification. As the accused has not disputed his signature on the cheque then the only question remain as to whether the particulars of the cheque are in the handwriting of the accused or not and only for that purpose the document is required to be referred for the opinion of the expert. For that purpose specimen of the hand writing of the applicant so also of the respondent are required to be referred for the opinion of the hand writing expert. 11 In the premises, prayer to reject the application at Exh.94 in toto is hereby rejected. The relief granted by the trial court is modified in the following terms. The lower court to obtain the specimen of the handwriting of the applicant as well as of the respondent-accused and refer those specimen of handwritings of the applicant and respondent alongwith disputed cheque of which signature is admitted by the accused for the opinion of the hand writing expert for determination whether hand writing and the particulars of the cheque are in the handwriting of the cran52.10 -10- accused or in the hand writing of the complainant. These exercise be completed within a period of three months form the receipt of writ of this judgment to the lower court. The respondents No.2 to bear the expenses of charges of the expert. 12 It is informed that already 7.5.2011 is the date fixed before the lower court. The parties to collect authenticated copy of this judgment and to place it before the lower court. After appearance of the parties this exercise to be completed by the lower court within a period of three months. As directed earlier the hand writing expert to submit his report within a period of three months and if extra special charges are required to be deposited for this urgency then the same should be deposited by respondent No.2 herein. On receipt of report of the hand writing expert, the trial court to dispose of the case within a period of one months thereafter, in accordance with law. 13 Rule made absolute as indicated above in modified terms. Application stands disposed of accordingly. 14 The parties to act on copy of this judgment duly authenticated by the Sheristedar of this Court. ***** cran52.10 -11-