cran566.11 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 566 OF 2011 Ayub A. Azij Bagwan Age 53 years, Occ. Service R/o. Naldurg, Tq. Tuljapur, District Osmanabad ...Applicant Versus Mahaveer Kushaba Kadam Age 50 years, Occ. Business, R/o. Jalkot, Tq. Tuljapur District Osmanabad ...Respondent ..... Mr. Kishor S. Bhore, advocate for the applicant Mr. S.B. Jadhav h/f Mr. A.S.More, advocate for respondent ..... CORAM: A.V. POTDAR, J. DATED: 7TH APRIL, 2011 JUDGMENT:- 1 By the present application under Section 482 of Cr.P.C., the applicant-accused has questioned the correctness of order passed below Exh.48 in S.C.C. No. 297 of 2006 on 29.9.2010. 2 Rule. Rule made returnable forthwith. By consent of the parties, heard finally at the stage of admission. 3 Heard counsel for respective parties. cran566.11 -2- 4 It is not under dispute that the respondent herein has filed criminal complaint under Section 138 of Negotiable Instruments Act bearing S.C.C. No. 297 of 2006 before learned J.M.F.C. Tuljapur. It appears that during the course of trial, respondent has led his evidence. Thereafter, the applicant was examined under section 313 of Cr.P.C. Statement of the applicant-accused under Section 313 is at Exh.51. In answer to question No.8, whether he has to lead any defence evidence or to tender any documentary evidence in his defence, he has answered in affirmative. So also it appears that before his examination under section 313, he had filed an application stating that the cheque in dispute was not signed by him nor the particulars of the cheque are in his handwriting. Hence, he has requested that the disputed cheque on which basis complaint is filed by the respondent under Section 138 of Negotiable Instruments Act be referred to hand writing expert. This application is at Exh.48. Vide order dated 29.9.2010 the said application came to be rejected by learned J.M.F.C. for the reason that the complaint was pending since last five years and the application is filed after thought and on this ground his application came to be rejected. 5 Learned counsel for the applicant, in order to lend credence to his submissions, has placed reliance on the reported judgment of the cran566.11 -3- Apex Court in the case of G. Someshwar Rao Vs. Samineni Nageshwar Rao and another [(2009) 14 SCC 677]. In the said ruling Apex Court has observed about referring of documents for the opinion of the expert. It is observed by the Apex Court that the appellant in the said appeal has prayed to send the documents to handwriting expert as he has disputed his signature as well as hand writing on the exhibit in question, as according to the appellant in that appeal that exhibit was not signed by him neither particulars of the exhibit were in his handwriting. Ultimately, Apex Court has observed that even though application of the accused is rejected by the trial court but in view of the peculiar facts and circumstances opportunity to examine the exhibit at the costs of the appellant ought to be granted for just decision of the case. 6 Bearing in mind these observations of the Apex Court in the ruling cited supra and the fact is clear that the applicant herein also came with a case before the lower court that the disputed cheque on the basis of which complaint was lodged by the respondent against him for offence punishable under Section 138 of Negotiable Instruments Act, is not signed by him neither the particulars of cheque were in his handwriting. Considering these aspects, if the accused- applicant chooses to refer the exhibit for the opinion of hand writing expert at his costs, then opportunity cannot be denied to him to set up cran566.11 -4- his defence. 7 In the premises, application succeeds. Order passed below Exh. 48 by the court below dated 29.9.2010 is hereby quashed and set aside and the application of the applicant to refer the disputed cheque, at his costs, for the opinion of handwriting expert is hereby allowed. 8 Rule is thus made absolute as indicated above. Application stands disposed of accordingly. *****