1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.608 OF 2009 Jagdish Prasad Shankarlal Marda Petitioner versus Sunil Jagannath Parmane and another Respondents Mr.Amit Sale for petitioner. Mr.Ajay Joshi for respondent no.1. Mr.H.J.Dedhia, APP for State. CORAM : A.S.OKA, J. DATE : 17th July 2009 PC :- 1. The submissions of the learned counsel for the parties were heard on the earlier date. The petitioner in this writ petition under Article 227 of the Constitution of India is the complainant. He filed the complaint alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act"). An application was made by the first respondent-accused under section 311 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code"). Two contentions were raised in the said application. One is that the cheque subject matter of the complaint was of the year 1990 which does not bear the signature of the first respondent. The second contention is that the question whether the signature on the cheque is of the year 1990 or 2001 is required to be decided by an expert. Therefore, a prayer was made that for the purposes of ascertaining whether the signature on the cheque was that of the accused, the documents be sent 2 to the handwriting expert and for ascertaining whether the signature appearing on the cheque has been made in the year 1990 or 2001, the cheque needs to be referred to the Director of Forensic Science Laboratory. The application was contested by the petitioner by pointing out that the application was filed only after the final arguments in the complaint were heard and that the first respondent has not come out with the case that he has not signed the cheque. The learned Magistrate allowed the application by passing following order :- "ORDER 1. ... ... 2. Disputed cheque and handwriting of accused, specimen signature of accused be sent to the Director of Forensic Science Laboratory for ascertaining of the age of disputed cheque's signature." 3. ... ..." 2. This is the order which is impugned in the present petition filed by the petitioner-complainant. The submission of the learned counsel for the petitioner is that it was never the case of the first respondent that the cheque in dispute does not bear his signature. Secondly, it was never the case made out by the first respondent that the signature on the disputed cheque was obtained in the year 1990 and not in the year 2001. 3. The learned counsel for the first respondent supported the impugned order. He invited my attention to the defence of the first respondent. He pointed out that there was material on record to show that the cheque formed part of the cheque book which was issued in the year 1990. He submitted that considering the said defence specifically 3 pleaded by the first respondent, it was necessary to seek opinion on the question whether the signature on the cheque was made in the year 1990 or 2001. He also invited my attention to the statement in writing filed by the first respondent under section 313 of the said Code. He, therefore, submitted that no interference is called for. 4. I have carefully considered the submissions. It must be noted here that the application made by the first respondent at Exhibit-139 was allowed in part in the sense that the only direction issued by the learned Magistrate was of sending the disputed cheque in the handwriting of the accused along with his specimen signature to the Director of Forensic Laboratory for ascertaining the age of the signature appearing on the cheque. So the opinion was called only for ascertaining whether the cheque was signed in the year 1990 or in the year 2001. The cross examination of the petitioner-complainant made by the advocate for the first respondent is placed on record. One of the suggestions put to the petitioner is that the cheque forms part of the cheque book which was taken by Vishwanath Parmane in February 1990 and that by putting the date 14.7.2001 the petitioner and the said Vishwanath Parmane fabricated the cheque. There is no specific suggestion given to the petitioner that the cheque was signed by the first respondent in the year 1990. A perusal of the statement under section 313 of the said Code shows that the specific case that the cheque was signed by the first respondent in the year 1990 has not been made out. It appears that the application at Exhibit-139 was filed on the same day on which the first 4 respondent filed his written submissions. Even in the written submissions there is no specific case made out that the cheque was signed in the year 1990. 5. In absence of such specific case being made out, there was no warrant for passing the impugned order of sending the cheque to an expert for ascertaining the age of the signature appearing on the cheque. Therefore, the impugned order will have to be quashed and set aside. 6. It must be, however, clarified that the observations made in this order are for limited purposes of examining the prayer made by the first respondent in the application at Exhibit-139. None of the observations made herein shall be construed as any adjudication made by this Court on the defence of the first respondent to the complaint. 7. Hence, I pass following order :- (a) Subject to what is observed above, the impugned order dated 12th February 2009 is quashed and set aside and the application at Exhibit-139 filed by the first respondent is dismissed; (b) All contentions on merits of the pending complaint are expressly kept open. (A.S.OKA, J.)