1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1026 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Coram: P.R.Borkar, J. Date : January 29, 2010 Shri B.S. Kudale, Advocate for the petitioner. Shri Bhushan Virde, Advocate for Respondent No.1. Shri K.M.Suryawanshi A.P.P.for Resp.No.2. 1. Heard. Rule. By consent of parties rule made returnable and writ petition is heard finally at admission stage. 2. This writ petition challenges the order passed by the learned Additional Chief Judicial Magistrate, Majalgaon, District Beed, on application (Exh.49) in S.C.C. No.589 of 2000, on 1.10.2009, whereby he dismissed the said application for sending disputed cheque for examination by and opinion of handwriting expert. 2 3. Briefly stated, Respondent No.1 has filed S.C.C. No.589 of 2000 against the petitioner for committing offence punishable under Section 138 of the Negotiable Instruments Act. As per the order dated 1.10.2009 passed by the learned trial judge, evidence of the complainant was over, statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded on 31.7.2003 and thereafter on 11.8.2003 the petitioner had filed the said application (Exh.49) for sending the cheque in question for examination and opinion by the handwriting expert. 4. Application (Exh.49) was opposed by Respondent No.1 by filing say on 8.10.203. However, for some mysterious reasons which are not on record, order was not passed on the said application between the period 8.10.2003 to 1.10.2009. 5. Learned Judge heard both sides and came to a conclusion that the said 3 application was belated and rejected the same, observing that the statement of the accused was recorded on 31.7.2003 almost six years ago and now the accused wanted to send the disputed cheque for expert opinion which, in the opinion of learned judge, was with a view to prolong the matter. 6. However, the learned Judge did not explain why the matter was not taken up between the period 8.10.2003 to 1.10.2009 and why no order was passed on application (Exh.49) for almost six years and for not passing any order, how accused can be blamed. 7. Considering the facts narrated above, in my opinion, this petition deserves to be allowed with following directions. 08. The application (Exh.49) in S.C.C. No.589 of 2000 on the file of learned Addl.Chief Judicial Magistrate, Majalgaon, is hereby allowed. Petitioner and Respondent No.1 agree to 4 appear before the trial court on 22.2.2010. On that date, petitioner shall deposit an amount of Rs.3,000/= as tentative fees of the handwriting expert. The learned Judge shall thereafter refer the disputed cheque for opinion of the handwriting expert along with documents bearing admitted signatures and ensure that the opinion of the expert is obtained as early as possible and dispose of the matter expeditiously. In case of failure of petitioner to deposit the amount of Rs. 3000 on the given date, application Exhibit 49 shall stand dismissed and then the hearing of the criminal case shall proceed in accordance with law. Writ Petition disposed of. Date: 29/01/2010 (P.R.BORKAR, J.) pnd/criwp1026.09