1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3884 OF 2008 Mritunjay Kumar Tiwari, Age: 40 years, Occu: Business, Director of Nexus Conusmark & Purifiers Limited, Kolkata, r/o 16C, Seal Lane, Kolkata 700 015 ...APPLICANT (ORIG.ACCUSED NO.2/APPLICANT) VERSUS 1. Kitchen Appliances India Limited, through its authorized person/ Managing Director, Auto Car Compound, Adalat Road, Aurangabad. 2. The State of Maharashtra. ...NON APPLICANTS/ RESPONDENTS (No.1 original complainant/ non applicant.) ... Mr. Rajendra Deshmukh, Advocate, for the applicant. Mr.A.S.Bajaj, Advocate, for respondent no.1. Mr. P.M.Shinde, APP, for respondent no.2. ... 2 CORAM: K.U.CHANDIWAL, J. DT: 14th August, 2009 ... P.C.: 1. Heard Counsel extensively. Rule. With the consent of respective Counsels, Rule is made returnable and heard forthwith. 2. In a matter of proceedings under Section 138 of Negotiable Instruments Act, after evidence of the complainant and his witnesses, evidence of the accused was in progress and on 17.4.2008 below Exh.246, an application was moved by the accused to send the disputed cheque to the handwriting expert or to the Central Forensic Laboratory, expressing willingness to bear expenditure therefor and also shown inclination to give specimen handwriting and signature before the Court for such examination, along with questions formulated by the accused, namely: (i) Whether handwriting of the signatory of the cheque is different from the rest of the writing on the cheque ( except A/c payee) ? (ii) Whether ink of the signatory and Ac payee is different from rest of the writing on the cheque ? 3 (iii) Whether any difference of the age of the ink between the signature and A/c payee on the cheque with rest of the writing on the cheque viz. name of the payee, amount in digit and words and date. (iv) Whether the writing on the main body of the cheque i.e. name of the payee, amount in words and digit and date was written subsequent to the signature and account payee mark ? This application, after hearing both the sides came to be dismissed by the learned Judicial Magistrate, First Class, by his order dt.7.7.2008, pointing therein that the accused is not disputing his signature on the cheque. According to the accused, he had practice of keeping blank signed cheques with his employee so that they can be used in his absence and in case of emergency. Learned Judge also observed that the matter is pending since 2002 and there was direction of High Court to dispose of the case by 9th Sept.,2008. The application was moved at the stage when the evidence of defense witness no.3, at the cross examination, was in progress. The learned Judge observed, since the accused/applicant has not disputed his signature on the cheque in question, there is no reason and justification for sending 4 cheque to the handwriting expert for examination of the writing or the signature. The learned Judge observed, the application is moved only to protract the proceedings and, consequently, he rejected the same. 3. The matter was taken by the aggrieved accused before the revisional Court. The learned Additional Sessions Judge, Aurangabad, after hearing both the sides extensively in Criminal Revision No.222/2008, by invoking provisions under Section 397 of Cr.P.C., by his judgment dt. 18.10.2008, did not agree with the contention raised by the accused to send the cheque to the laboratory to answer the questionnaire as it could be a futile exercise as the case of the complainant is that writings on the disputed cheque are not that of the accused persons and, according to the learned Additional Sessions Judge, the exercise of sending the disputed cheque would be futile. This order is subject of challenge in the present Criminal Application. 4. There is a chequered history of litiation between the parties, based on the proceedings under Section 138 of Negotiable Instruments Act. Several issues, giving particles and tissues were taken up before the learned Sessions Judge and then to this court. The application was moved before the learned Judicial Magistrate, First 5 Class, below Exh.216, seeking time to examine the Police authority of Kali Ghat Police Station of Calcutta and Bank official of Calcutta. Both being Government authority and sought time. The learned Judge, on such application dt.3rd Nov., 2007, granted time for leading such evidence, however, found that accused was protracting the matter which is referred by the learned Judge in his order at so many occasions. The accused did not pay the process and Bhatta for summoning the witnesses and inspite of there being a time scheduled fixed by the High Court to conclude the trial by 9th Sept.,2008, the matter could not reach that stage. 5. Now, during the course of my dictation, Mr. Rajendra Deshmukh, Counsel, interrupts and points that there is a letter dt.14.10.2008 (Page 80) of Corporation Bank that the witness was present on 17th and 18th Dec.,2007, and it was informed, unfortunately, entire deposition could not be completed inspite of his two days presence - The fault, in the scenario, could not have been to the shoulder of the learned Judge or to the complainant, as record speaks for itself. 6. Now, the matter is to be considered in the light of Exh.246, dt.17.4.2008, referred to hereinbefore. 6 7. In order to substantiate contention about need to send the cheque in question to the handwriting expert for ascertaining its age, Mr. Deshmukh, Counsel took recourse to the judgment of Hon'ble Apex Court in the matter of T.Nagappa V. Y.R.Muralidhar ( (2008) 5 SCC 633). He thoroughly read the said judgment to canvass that the provisions of Section 20 of Negotiable Instruments Act, by itself, is not exhaustive to close the doors for the accused/applicant to examine the defense witness and, particularly, handwriting expert, to ascertain age of the writing. There cannot be a quarrel on proposition of law as has been enunciated in the judgment of T.Nagappa but the facts in the said case will also have its bearing on the matter. In the said case, the cheque was purported to be issued by the accused on 8.10.2004, for a consideration of Rs.7,50,000/- for which prosecution under Section 138 of Negotiable Instruments Act was lodged in the year 2005. It was a specific defense of the accused in the said case that he had signed blank cheque in favour of the complainant for having received hand loan of Rs.50,000/- in the year 1999 and the amount was paid back. However, the cheque, instead of being returned to him, was retained by the complainant and he has misused it, by entering huge amount of Rs.7,50,000/-. In the light of this scenario the apex Court formulated question in paragraph no.12 as under: 7 "Whether the writings appearing in the said cheque on the front page is written on the same day and time when the said cheque was signed as "T.Nagappa" on the front page as well as on the reverse, or in other words, whether the age of the writing on Ex.P2 on the front page is the same as that of the signature "T.Nagappa" appearing on the front as well as on the reverse of the Cheque Ex.P2?" 8. Now, to revert back to the facts of the present case, as stated earlier, it is case of the accused herein that the cheque was a blank signed cheque by him, kept with his employee. There were three such cheques which were lost on 10th Nov.,2001, from the possession of the accountant of the company Mohd.Wasi Ahmed. The accused contends and referred in paragraph no.3 of the present petition that all the cheques were partially written (signed and marked account payee only) in his own handwriting. It was the practice of the accused to keep such blank cheques with the then accountant as he was required to move frequently and at distant places and for practical purposes and for immediate payments, such blank cheques were arranged for and kept with the said accountant. 9. Thus, it is clear, the case of the accused is, the cheques were signed and put account payee endorsement by him and they were 8 lost somewhere on 10th Nov.,2001. The case of the complainant is: he has received the cheque while at Calcutta on 4th Dec.,2001, from the accused. It was drawn and passed by the accused. If there is any change of age as the accused wants to canvass and accelerate, it could not be more than 20/30 days from 5th Dec.,2001. This aspect loses significance in the light of the assertion of the accused/applicant that he had practice to keep blank signed cheques with his accountant Mohd.Wasi Ahmed. It was, thus, open for the accused/applicant to keep cheques for the years together for which the complainant should not face the consequences. 10. The fact remains, was there any apparent liability or is it a case of stolen cheque. During the course of submissions, I have inquired with Mr. Deshmukh, Counsel, whether the complainant herein is an altogether stranger. Mr. Deshmukh, Counsel, informed, on instructions that the complainant had transactions of supply of goods to the accused/company. However, such transactions of supply discontinued in the year 1999. Thus, the fact remains, there was acquaintance between the complainant and the accused. 11. The chequered history between the parties indicate that the applicant having opportunities 9 at several level to get his point redressed/ventilated of examining the document through handwriting expert, as to age, he did not do so and allowed the ink to dry upto 17.4.2008. It is apparently a sheer exercise to protract the proceedings as the prosecution is tested at every level to make it a persecution for the complainant for the liability which he asserts to be legally enforceable liability. 12. The defense of the accused was, he never issued the disputed cheque to the complainant and there are no outstanding dues. However, the cheque having been defined as bill of exchange in Section 6 of Negotiable Instruments Act, its parameters will have to be taken into consideration. That apart, the effect of Section 20 of Negotiable Instruments Act cannot be obliterated and, particularly when the record demonstrates that the accused has with calculated motives protracted the proceedings from at least 2002 and inspite of there being time schedule indicated by the High Court. In the situation, the Criminal Application is without any merit. Accordingly, it is dismissed. Rule discharged. (K.U.CHANDIWAL) JUDGE ... agp/3884-08crapl