drp {1} CWP No.148/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.148 OF 2011 Shashindra Mahaling Naik PETITIONER Age-47 years, Occ-Business R/o Shirdi, Tq-Rahata, Dist-Ahmednagar VERSUS 1. The State of Maharashtra RESPONDENTS 2. Narayan Nagorao Jadhav, Age-65 years, Occ-Retired R/o Savlivihir Bk Tq-Rahata, Dist-Ahmednagar, ....... Mrs.R.S.Kulkarni h/f Mr.S.S.Kulkarni Advocate for petitioner Mr. V.D.Rakh, APP for respondent State Mr. K.S.Bhore, Advocate for respondent No.2 ....... [CORAM : A.V.POTDAR, J.] DATE: 8 th April 2011 ORAL JUDGMENT: 1. By this petition, under Article 227 of the Constitution of India, r/w 482 of the Criminal Procedure Code, the petitioner- accused in STC No.557/2009 pending before JMFC, Rahata, has prayed for quashing of the order dated 14.02.2011 passed by Additional Sessions Judge Kopargaon in Criminal Revision Application No.1/2011 and to allow the application Exhibit-88 moved by the petitioner before JMFC, Rahata to refer the cheque (Exhibit-29) to hand writing expert. drp {2} CWP No.148/2011 2. Rule. Rule made returnable forthwith. By consent of the parties, heard finally at the stage of admission. 3. Brief facts of the case, which lead to filing of the present petition, may be summarized thus - Present respondent No.2 has filed STC No.557/2009 before JMFC, Rahata against the present petitioner and two others for an offence punishable u/s 138 of the Negotiable Instruments Act with section 406, 420 r/w 34 of the Indian Penal Code alleging that the cheque issued by the petitioner, purportedly dated 22.09.2008, was dishonoured and inspite of issuance of statutory notice the said amount was not repaid by the accused persons. After receipt of summons, the petitioner appeared in the complaint. It appears that initially, evidence of respondent No.2-complainant was recorded on 29.06.2010 and thereafter the present petitioner- accused was examined u/s 313 of the Criminal Procedure Code on 06.07.2010. After the petitioner-accused was examined u/s 313 of the Criminal Procedure Code, the petitioner-accused moved an application for recalling of the witnesses. Thereafter the witness was recalled and cross examined on behalf of the petitioner- accused. Thereafter, the petitioner moved an application at Exhibit-88 contending that particulars of the cheque, particularly date appears to be altered and hence requested to refer the same to the handwriting expert. The said application was rejected by the drp {3} CWP No.148/2011 trial court and hence the petitioner had preferred the revision, which is also dismissed by the revisional court on 14.02.2011 and hence the present petition. 4. Learned counsel for the petitioner, draw my attention towards the cross examination of respondent No.2-complainant. From perusal of the cross examination and admissions given by respondent No.2, it is clear that the petitioner is the only signatory to the cheque in question and the other particulars are not in his hand writing. In answer to question No.11, u/s 313 of the Criminal Procedure Code, the petitioner has taken a specific defence that the signed blank cheques were issued by way of security to respondent No.2-Complainant and the dates are adjusted by respondent No.2 so as to suit his case. Apparently, there appears some alteration in the date on the cheuqe, in respect of year. When the complainant himself, in no uncertain terms, has admitted that the petitioner is only signatory to the cheque and the remaining particulars are not in his hand writing then a question arose as to whether the date on the cheque is suitably adjusted to bring the complaint within limitation and this is a core question which goes to the root of the dispute and to decide as to whether the complaint is barred by limitation. 5. Learned counsel for respondent No.2 opposed the petition on the ground that the application was moved by the drp {4} CWP No.148/2011 petitioner at a belated stage and secondly trial u/s 138 of the Negotiable Instruments Act is a summary trial in nature and it is specifically observed by the trial court as well as by the learned Revisional Court that when the so called alteration was viewed through magnifying glass, they did not find any alteration. Technically speaking, there is difference between the “view” of the ordinary person and that of the expert. 6. In this light, it may be useful to refer the observations of the Apex Court in the matter of “G. Someshwar Rao V/s Samineni Ganeshwar Rao” (2009) 14 SCC 677. The Supreme Court, in the said judgment has observed that successive applications for the same purpose are not maintainable, but considering the peculiar facts and circumstances of each case, opportunity needs to be given to the defence to set up the defence properly, however at his costs. It is further observed that though the trials u/s 138 of the Negotiable Instruments Act are summary in nature, yet opportunity to lead proper defence not to be denied to the accused. 7. Circumstances in the present case are apparently that so far as the role of the present petitioner is concerned, he has only signed the cheque and even as per the cross examination of respondent No.2- complainant, other particulars on the cheque are not in the handwriting of the petitioner. Prima facie, there appears drp {5} CWP No.148/2011 certain alteration in the date and considering the fact that the particulars on the cheque are not in the handwriting of the petitioner, the circumstances warrant that opinion of the expert is necessary, however at the costs of the petitioner. Considering the peculiar facts and circumstances of the case, the petition deserves to be allowed and the impugned orders deserve to be quashed and set aside. 8. Consequently, the writ petition is allowed in terms of prayer clause “A” and “B”. Order dated 14.02.2011 passed by Additional Sessions Judge Kopargaon in Criminal Revision Application No.1/2011 is hereby quashed and set aside and the application Exhibit-88 moved by the petitioner before JMFC, Rahata is hereby allowed. Rule is thus made absolute on the terms indicated above with no order as to costs. Parties are directed to appear before the trial court on 15.04.2011. Both the learned counsel undertake to intimate this order to their respective clients. 9. It is hereby clarified that the observations made in the above judgment are prima facie and the trial court need not be influenced by the same while deciding the matter. [A.V.POTDAR, J.] drp/B10/cwp148-11