1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, NAGPUR BENCH, NAGPUR CRI. APPLICATION NO. 4509 OF 2008 Hariom Krishi Seva Kendra Vs. Shivkumar s/o Harnarayan Agrawal and other ----------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders Mr. M. Kariya, Advocate for the petitioner. Mr. A.S. Mardikar, Advocate for the respondent No.1. Mr. D.M. Kale, A.P.P. for the respondent No.2. CORAM:- R. Y. GANOO, J. DATED :- 10th AUGUST, 2009. 1. The petitioner is facing trial under Section 138 of the Negotiable Instruments Act in the Court of Judicial Magistrate First Class, Court No.5, Amravati in Summary Criminal Case No. 482/2001. The petitioner at the stage of arguments filed an application requesting the learned Judicial Magistrate First Class, Court No.5, Amravati to send the impugned cheque and the admitted hand writings of the respondent No.1/complainant to the Handwriting Expert by application below Ex.157. The said application came to be rejected by order dated 4th November, 2008. Against the said order the petitioner filed Criminal Revision No.230/2008 in the Sessions Court. The said revision came to be assigned to the 2 learned First Ad-hoc Additional Sessions Judge, Amravati, who by his order dated 20-11-2008 dismissed the revision application. Against these two orders this petition is filed. 2. I have heard learned Advocate Mr. Kariya appearing on behalf of the petitioner and Mr. Mardikar, Advocate for the respondent No.1/complainant. The petitioner in the course of trial has come with a defence that he had delivered to respondent No.1 the impugned cheque by tendering his signature on the cheque and particulars of the cheque such as date, name of the payee, amount in words, figures were not filled by him and that the impugned cheque was given by way of a security. In the course of trial certain questions were asked to the respondent No.1 and it was sought to be suggested that the handwriting on the cheque is that of respondent No.1. The said stand of the petitioner was declined by the respondent No.1. Afterwards the matter proceeded and when it was pending at the stage of argument, the application at Ex.157 was made and it was attended to as mentioned aforesaid. 3. The learned Advocate for the petitioner before this 3 Court submitted that keeping in view the observations of the Hon’ble Supreme Court in case of Kalyani Baskar (Mrs) Vs. M.S. Sampoornam ( Mrs.) reported in (2007) 2 Supreme Court Cases 258 and T. Nagappa Vs. Y.R. Muralidhar reported in 2008(2) Crimes 219 (SC), the application of the petitioner ought to have been granted. 4. I have heard learned Advocate for the petitioner and learned Advocate for the respondent No.1 Mr. Mardikar. The broad proposition that accused should be permitted to place his defence in the trial cannot be disputed to that extent the argument advanced by the petitioner Advocate is required to be accepted. The petitioner has filed the present application at Ex.157 at the stage of argument. This will clearly mean that all the stages of the trial are over and it is at the stage of argument the application is made. Even after it is accepted that the application filed by the petitioner would be entertained to enable the petition to unfold his defence, the question is in the facts and circumstances of the case whether such a request is granted by the Court below. 5. It is to be noted that the respondent No.1 has 4 deposited in the bank a cheque for Rs.2,95,000/- and particulars in the said cheque referred to the respondent No.1 as a drawee and the amount is as per the figure mentioned above i.e. Rs.2,95,000/- and the cheque is shown to have been signed as dated 22-12-2000. It is to be noted that the respondent No.1 has deposited the said cheque in the bank for realisation which will mean that the respondent No.1 has admitted the contents of the cheque which refer to the date, name of the payee and the figure in words and amounts and it will not be open for the respondent No.1 to say that such a cheque was not made use for the purposes of depositing in the bank for recovering the money from the petitioner. 6. The petitioner wants to contend that if he is in a position to show that the handwriting on the cheque is that of the respondent No.1, he would be able to establish his defence that the said cheque was given by way of a security. After having considered the entire matter, I am inclined to observe that question whether the said cheque was given by way of a security or otherwise has nothing to do with the contents of the cheque namely date, name of the payee because the respondent No.1 has proceeded to deposit the said 5 cheque received from the petitioner and now it will not be open for the respondent No.1 that the said cheque was deposited without his knowledge and without consent. The opinion as regards the Handwriting Expert as to whose handwriting the said particulars are filled in is immaterial for the purposes coming to the conclusion as to whether the said cheque was given to by petitioner by way of a security. The petitioner will have to make out a case before the trial Judge that he handed over to the respondent No.1 a blank cheque duly signed by him and that such a delivery of the cheque was by way of a security and not towards discharging any liability. As to whose handwriting is on the body of the cheque is hardly material when the respondent No.1 has deposited the said cheque in the bank and wants to claim benefit on the basis of the cheque. The denial on the part of the respondent No.1 is apparently a false denial and that by itself will not give any ground for the petitioner to say that the Handwriting Expert’s opinion is called for. 7. In my view, no interference is required in the impugned orders. Both the Courts have appreciated the point in question. Hence the petition is required to be dismissed at the stage of admission. 6 Hence the petition is dismissed at the stage of admission. JUDGE pma.