IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL WRIT PETITION NO.2319 OF 2011 Sunil Shankar Agharkar -- APPLICANT V/s. 1. State of Maharashtra & Anr. 2. M/s. Reliance Capital Ltd. -- RESPONDENTS Mr. S.M.Sakhardande with Mr. H.G. Dharmadhikari i/b. Mr. Palash Dharmadhikari for Petitioner Mr. Ramesh Dubey-Patil i/b. M/s. Ajay Miser for R.No.2 Mr. D.P. Adsule, APP for State, R.No.1. CORAM : K.U. CHANDIWAL, J. DATE : 11th OCTOBER 2011 P.C. 1. Heard. 2. In the Proceedings U/s.138 of Negotiable Instrument Act in C.C. No.8216/SS/11 an application below Exh.36 was moved by the accused applicant for referring the cheque bearing No.814644 dated 6th October, 2010 drawn on Centurion Bank of Punjab Ltd., Thane to the hand writing expert, rejection thereof by the learned Metropolitan Magistrate dated 27th June, 2011 and by the learned Sessions Judge, Mumbai in C.R.A. No.134 of 2011 dated 25th July, 2011, is challenged. 3. The learned Counsel for the accused applicant invited my attention to the evidence of complainant dated 23rd May, 2011 (part of Exh.32), to inform that reading the evidence appearing in para 19, it cannot be said to be a admission by accused/applicant, as has been so recorded by the learned Sessions Judge, in paragraph 5 and 6 of order. 4. Para 19 of the cross examination of complainant Manoj reads as under :- Paragraph 19 .- The accused had handed over the cheque Exh.27 to me at Thane at the Office of the accused. The accused had filled up the amount in figure and words in the cheque. He had also mentioned the date in it. It is not correct to say that the cheque Exh.27 was obtained before the loan was disbursed to him. The cheque was dishonoured on 9th October, 2010. It is not correct to say that I have deposed false. 5. The tenor of evidence as referred in paragraph 19 is indicated hereinabove. The answer was naturally in response to a question put to the witness, he has answered about the accused having handed over the cheque Exh.27 at Thane at the office of the accused. The accused filled up the amount in figures and words in the cheque. The witness also says, being so asked, he had also mentioned the date in it. The suggestion that was given from the accused was, the cheque was collected from the accused before the loan was disbursed to him. There was no case put to the witness by the accused/ applicant that the contents in cheuqe were not filled in by the accused applicant. The manner in which the questions were put to the complainant, could naturally suggest the learned District Judge in interpreting that the desire of accused was accepted by him of having filled in figures and words in the cheque. 6. The learned counsel for the accused applicant referred to the statement U/s.313 of Cr.P.C. to criticize that the learned Judge did not put questions as to who has filled in cheques in question. 7. It was not imperative to the learned Judge to have put questions to the accused to seek explanation, as this is a defence, which the accused was required to deal with while putting his defence. The case with evidence the complainant as a whole were indeed referred in the statement U/s. 313 of Cr.P.C. 8. The learned counsel for the accused applicant has placed reliance to the judgment of T.Nagappa Vs. Y.R. Muralidhar, 2008- Scale-6-642, and particularly Paragraph 9, thereof. 9. There cannot be quarrel on the proposition of law as enunciated by Hon'ble Supreme Court of India, however, in the said case the observations flowed from the nature of the signature put by said T. Nagappa being in dispute as referred by Hon'ble Supreme Court in Paragraph 10. The factual matrix of the present case is, otherwise. There is no defence of alteration in cheque. Sec.20 of the Negotiable Instrument Act, authorise the drawer of the cheque to fill in the contents therein. The another aspect of the matter as has been repeatedly urged about the cheque was given when there was finance from earlier bank and after taking over the organisation the same cheque is used however, this stand of the accused applicant is apparently raised for the first time, before this Court, which does not flow from any suggestion, given to the complainant, as could be seen from the evidence. 10. In the above said facts, I do not see any error on the part of the both Courts in rejecting to send the cheque in question to hand writing expert for examination. 11. Observations are prima facie in nature. Petition dismissed. ( K.U. CHANDIWAL,J. )