1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1132 OF 2009 Sau. Jaishree w/o Shivprasad Bajaj Age: 50 Yrs., occu. Household, R/o Sangri Bhusar, Tq. Kopargaon, District Ahmednagar. - PETITIONER VERSUS 1) The State of Maharashtra. 2) Shri Agrasen Urban Co-operative Credit Society Ltd., E-Wing, Gala No.26,30,32, 2nd Floor, V.V.Market, Jalgaon, Dist. Jalgaon. - RESPONDENTS ***** Mr.Jayant R.Patil,Advocate for Petitioner; Mr.S.D.Kaldate, APP for Respondent No.1-State; Mr.A.I.Deshmukh, Advocate for Respondent No.2. ----- CORAM : SHRIHARI P.DAVARE,J. DATE : 6th July, 2010. ORAL JUDGMENT : 1) Heard learned Counsel for the respective parties. 2 2) Rule. Rule made returnable forthwith and with the consent of learned counsel for the parties, taken up for final hearing. 3) By the present petition filed by the petitioner under Article 227 of Constitution of India, she prayed for issuance of appropriate writ for quashing and setting aside the Judgment and Order dated 12.11.2009 passed in Criminal Revision Application No.57/2009 by learned Sessions Judge, Jalgaon, thereby confirming the order dated 12.1.2009 passed by JMFC,Jalgaon in SCC No. 2534/2003 below Exhibits-39 and 49. 4) The petitioner is original accused in S.C.C.No.2534/2003 filed by Respondent No.2 (original complainant) under Section 138 of the Negotiable Instruments Act and the same is pending before the learned Judicial Magistrate First Class, Jalgaon and copy thereof is produced at Exhibit-A (page 14 of the petition). The said complaint is filed on the basis of dishonour of 3 cheque of Rs.96832/- given by the accused, allegedly towards repayment of loan of Rs. 75,000/- and interest thereon obtained by the accused from the complainant. 5) The complainant adduced oral and documentary evidence as well as the learned JMFC recorded the statement of the accused under Section 313 of the Code of Criminal Procedure. 6) It is alleged by the petitioner (original accused) that he came to know that the hand-writing on the cheque consisting the name of the complainant and the amount in figures and letters is of one Lalit Narayan Thakkar, who represents the complainant/society. Hence, the petitioner preferred an application below Exhibit-39 on 6.9.2005, requesting to send the cheque in question (Exhibit-17) to the Hand- writing Expert for obtaining his opinion as to whether the handwriting on the said cheque, consisting the name of the complainant and the 4 amount in figures and words is that of one Lalit Narayan Thakkar, who represents the complainant/society, under Section 45 and 73 of the Indian Evidence Act. The respondent, i.e. the original complainant filed its say dated 19th September, 2005 and thereby opposed the said application (Exhibit-39). 7) Thereafter the petitioner/accused preferred another application on 3rd July, 2007 under Section 45 of the Indian Evidence Act (Exhibit-D collectively, page 22 of the petition), contending that the cheque in question (Exhibit-17) does not bear her signature and, therefore, requested that the said cheque (Exhibit-17) be sent to the Hand-writing Expert, for calling his opinion, as prayed for in the said application. 8) The Respondent herein filed its say on the said application on 3rd July, 2007 itself and resisted the same. Thereafter the learned JMFC(2nd 5 Court) Jalgaon passed a common order on both the said applications, i.e. Exhibits-39 and 49 on 12.1.2009 and thereby rejected both the applications. 9) Being aggrieved and dissatisfied by the said common order dated 12.1.2009, the petitioner herein preferred Criminal Revision Application No.57/2009 before the learned Sessions Court at Jalgaon, challenging the correctness and legality of the said order. However, the said Criminal Revision Application also was dismissed by the learned Sessions Judge, Jalgaon on 12th November, 2009. 10) Being aggrieved and dissatisfied by the said order of dismissal of the Criminal Revision Application by the learned Sessions Judge, Jalgaon, the petitioner (original accused) has preferred the present writ petition, assailing the correctness and legality of both the said orders passed by the JMFC (2nd Court) Jalgaon 6 dated 12.1.2009 and also rendered by the learned Sessions Judge, Jalgaon on 12.11.2009 respectively and prayed for quashment thereof. 11) After considering the rival submissions advanced by the learned Counsel for the respective parties, it is significant to note that, the application (Exhibit-39) preferred by the petitioner on 6.9.2005 is restricted and limited to the extent of sending the cheque to the Hand-writing Expert for obtaining his opinion regarding the contents of the said cheque, i.e. name of the complainant and amount of cheque in figures and words and also for seeking opinion as to whether the hand-writing of the said cheque was that of one Lalit Narayan Thakkar, who represents the complainant/society and there is no whisper in the said application in respect of verification of signature of the accused thereon by the said Hand-writing expert. However, subsequently, after lapse of almost two years, the petitioner herein preferred another 7 application on 3rd May, 2007, thereby praying that the said cheque (Exhibit-17) be sent to the Hand- writing Expert to verify the signature thereof. In fact, the petitioner was aware about the signature of the said cheque, since it is another defence of the petitioner that the petitioner issued the said cheque signed by her, but the contents thereof were blank, and the said very aspect creates suspicion about the stand taken by the petitioner herein. Moreover, it is also evident that specific suggestions were given to the complainant’s witness in the cross- examination that except the signature, the other contents written on the said cheque in question were in the hand-writing of the said witness and the said aspect was noticed by the learned JMFC while rejecting both the said applications by the common order dated 12.1.2009. 12) Besides that, the learned Sessions Judge, Jalgaon, has rightly observed in the impugned order dated 12th November, 2009 that 8 since the applicant did not make any prayer for obtaining the opinion of the Handwriting Expert about the `signature’ on the cheque, it is impossible to think that when the applicant was specifically asking for sending the cheque to the Handwriting Expert for its examination and opinio0n about the other contents of the said cheque, she would miss to mention and call for the opinion regarding the `signature’ also. It is also rightly observed by the learned Sessions Judge, Jalgaon that in fact, if the signature would not be of the applicant, the entire case of the respondent no.1 goes away and this aspect would have been emphatically mentioned by the applicant. 13) Apart from that, the learned Counsel for the respondent pointed out that the statement of the petitioner (original accused) has also been recorded under Section 313 of Cr.P.C. and the matter is at the stage of arguments and preferring of the applications (Exhibits-39 and 9 49) are one of the tactics to protract the matter and sight cannot be lost of the said submissions and, therefore, it is necessary to expedite the hearing of the case. 14) In the circumstances, there is no perversity and arbitrariness in the orders passed by learned JMFC (2nd Court) Jalgaon rejecting the applications (Exhibits-39 and 49) preferred by the petitioner on 12th January, 2009 and also by the learned Sessions Judge, Jalgaon dismissing the Criminal Revision Application No. 57/2009 on 12.11.2009, and hence no interference therein is warranted under Article 227 of the Constitution of India and therefore present writ petition deserves to be dismissed. 15) In the result, the present petition is sans merit, stands dismissed. Rule stands discharged. 16) The learned JMFC, (2nd Court) Jalgaon, to 10 decide the S.C.C.No.2534/2003 on its own merits expeditiously in accordance with law without being influenced by the observations made in this judgment. sd/- (SHRIHARI P.DAVARE) JUDGE bdv/crwp1132.09 Authenticated copy (BD VADNERE,PS)