1 83 wp.3373.10 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 3373 OF 2010 Tejaram Foraram Jakhad. ... Petitioner Versus Sohanlal Deeparam Unecha and another. ... Respondents ----- Mr. Ashok B. Tajane for the Petitioner. Mr. A.P.Vanarse for Respondent No.1. Mrs. U.V.Kejriwal, APP for Respondent No.2 / State. ----- CORAM : A.S.OKA, J. DATE : 03 rd October, 2011. P.C. 1 Considering the narrow controversy involved in the petition, the same is taken up for final disposal at the admission stage. 2 The Respondent No.1 is the original complainant. The complaint was filed alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the said Act”). On 1 st April, 2009, the Petitioner – Accused after cross-examination of the witnesses for prosecution was 2 83 wp.3373.10 recorded and after the Petitioner had entered his defence, made an application under Section 243 of the Code of Criminal Procedure, 1973 praying for sending certain documents to the handwriting expert. By the impugned judgment and order, the learned Magistrate rejected the said application relying upon presumption under Section 118 of the said Act. A revision application was filed by the Petitioner. The revision application has been dismissed. 3 The learned counsel appearing for the Petitioner relied upon a decision of the Apex Court in the case of Kalyani Baskar Vs. M.S.Sampoornam (2007 (2) SCC 258). He submitted that the grounds on which the application was made for seeking opinion of the handwriting expert were specifically set out in the application and without considering the said grounds, the application has been rejected by relying upon Section 118 of the said Act. The learned counsel appearing for Respondent No.1 submitted that there is no dispute regarding the signature of the Petitioner – Accused on the cheque. He, therefore, submitted that the learned Magistrate has 3 83 wp.3373.10 rightly rejected the application. 4 I have carefully considered the submissions. It will be necessary to make a reference to the material averments made in the application at Exhibit – 50. The said application was made by the Petitioner after the Respondent No.1 closed his evidence and after the Petitioner entered his defence. In paragraph Nos.2 and 3 of the said application, it is stated thus: “2. During the evidence led by the complainant especially in the cross-examinations: a. P.W.1 has stated that: I. Exhibit No. 46 i.e. the cheque in question has been written in his presence ; II. Exhibit No. 46 i.e. the cheque in question has been written in one and the same ink and at one and the same time; and III. Exhibit No. 45 i.e. the alleged receipt has also been written in one and the same ink. b. P.W. 2 has stated that- I. To accused signed exhibit No. 45 and exhibit No. 46 in his presence ; II. The signature on exhibit No. 45 is in one ink while the other contents are in another ink; and III. In exhibit 46 the contents regarding the numerals are in one ink while the signature is in another ink. 3 As can be easy referred from the line of cross- 4 83 wp.3373.10 examination it has been the say of accused, that he had given the disputed cheque only by signing it and undated. Similarly, that he has never issued or written any receipt as is alleged by the prosecution. Suffice it to say that both the documents have been concocted to suit the purpose of the prosecution. The accused would be in a position to establish his innocence, if, exhibits 45 and 46 are sent to the handwriting expert with the special queries that follows.” It will be also necessary to make a reference to what is set out in paragraph No.5, which reads thus: “5. It is necessary, in the interest of Justice; to ensure a fair trial; and to afford an opportunity to the accused to prove his innocence, that Exhibit 45 and Exhibit 46 be sent to the handwriting expert, along with admitted handwriting of the accused, and call for his opinion on the following queries- a. How many inks have been used in writing the cheque exhibit 46 and whether all the writing on the cheque has been done at one and the same time? b. Whether the contents and signatures of the alleged receipt exhibit 45 are in one and the same ink and whether all the writing on the receipt has been done at one and the same time? c. Which of the handwriting on exhibit 45 and exhibit 46 is in the handwriting of the accused?” 5 There does not seem to be any dispute about the signature on the cheque. From the application at Exhibit – 50, it 5 83 wp.3373.10 appears that there is variance between the versions of the two prosecution witnesses, which has been set out in paragraph No.2 of the application. The case of the Petitioner appears to be that he has signed the disputed cheque as a blank cheque, which was undated. His case is that he has not signed the receipt at Exhibit – 45. These aspects have not been appreciated by the learned Magistrate. The learned Magistrate has tried to take a simplified view of the matter by observing that there is no dispute regarding the signature on the cheque at Exhibit – 46. The learned Judge has completely ignored the binding precedent in the form of the judgment of the Apex Court in the case of Kalyani Baskar (supra) by merely observing that the facts of the present case are different. Section 243 of the said Code was invoked by the Petitioner. The view taken by the learned Magistrate as well as the Sessions Court is erroneous and therefore, the petition will have to be allowed. 6 Hence, I pass the following order: i. The impugned judgment and order dated 17 th 6 83 wp.3373.10 July, 2009 passed below application at Exhibit – 50 is quashed and set aside and the application at Exhibit – 50 is allowed; ii. The learned Magistrate shall seek opinion of appropriate expert as prayed in the application ; iii. The hearing of the complaint is expedited ; iv. The petition is allowed on above terms ; and v. All the contentions of the parties on merit are kept open. [ A.S.OKA, J ]