1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.590 OF 2010 Ajay Vimalchand Parmar ...Petitioner. v. The State & Anr. ...Respondents. Mr. V.V.Purwant i/by Shri Amol Kekade advs., for the petitioner. Mr. D.R.More, APP for the respondent no.1/State. Shri Jehangir Khajotia, adv. For the R.No.2. CORAM : J.H.Bhatia, J. DATE : 6th April, 2011 P.C.: 1 Rule. Rule made returnable forthwith. 2 Heard. Respondent no.2 Mahendrakumar Gandhi filed a complaint under Section 138 of the Negotiable Instruments Act against the present petitioner. That case is registered as Criminal Case No.115 of 2002 before the Additional Chief Metropolitan Magistrate 40th Court at Girgaon and later on, it was transferred to Special Metropolitan Magistrate where it is re-registered as Criminal Case No. 709/SS/2005. Petitioner had made application before the trial Court to send the cheque dated 6th November, 2001 and the two promissory notes, which were produced by the respondent/complainant to the handwriting expert. As that application was rejected, petitioner had previously filed Writ Petition No.360 of 2007. Petition was disposed off 2 by an order dated 1st August, 2008. It was noted that the signature on the cheque was admitted by the petitioner/accused. Dispute was about the signatures of the petitioner on the promissory notes. While disposing off the petition by an order dated 1st August, 2008, the learned Single Judge had observed " Promissory Notes have been produced by the respondent/complainant and the petitioner/accused has never relied upon the promissory notes.” In view of this, this Court had refused to refer promissory notes to the handwriting expert. In fact in the above sentence, word ‘petitioner/accused’ appears to be typing mistake because promissory notes were produced by the complainant and there was no question of accused relying upon the same. Later on , the complainant filed affidavit in evidence wherein he relied upon said promissory notes. Petitioner thereafter filed private complaint against the respondent under section 465 I.P.C. That case was referred to the police for investigation under Section 156(3) of the Cr.P.C. Police approached the Magistrate with request to refer original promissory notes to the handwriting expert because the expert had refused to give any opinion on the basis of photocopy. By the impugned order, the learned Special Metropolitan Magistrate rejected that application on the ground that alongwith the complaint, the present petitioner had 3 already produced photocopies of the promissory notes alongwith the handwriting expert’s report and therefore, it was not necessary to refer original for the opinion of the expert. 3 The learned counsel for the petitioner contended that reference of original promissory notes for the handwriting expert report is necessary for two reasons. Firstly, the case under section 138 is based on the cheque, which itself is based on said promissory notes and if the promissory notes are found to be forged, case under Section 138 may fail. Secondly, if the expert’s opinion shows that said promissory notes are not signed by the present petitioner, the respondent may be liable to be prosecuted and convicted for forgery. It is settled position of law that the handwriting expert can give opinion only after examining original documents alongwith the other admitted or specimen writings. Opinion obtained on the basis of photocopies of certain documents may not stand to the judicial scrutiny. In view of these circumstances, I find that the learned Special Metropolitan Magistrate committed error in refusing to refer original documents to the expert. 4 Therefore, in view of the above, the present petition is allowed. The learned Special Metropolitan Magistrate is hereby 4 directed to refer original promissory notes produced by the complainant/respondent alongwith some admitted signatures and and specimen signatures of the accused to the handwriting expert for opinion. Handwriting expert shall be requested to give opinion as early as possible preferably within three months from the date when he receives documents. Cost of handwriting expert shall be borne by the petitioner/accused. The trial Court shall retain photocopies of the documents, which may be sent to the handwriting expert. Trial of the case under Section 138 of the Negotiable Instruments Act shall remain stayed till the handwriting expert report is received. Rule made absolute accordingly. (J.H.BHATIA, J.) 5