1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. CRI. WRIT PETITION NO. 425 OF 2009 Ravi s/o Shamrao Timande, aged about 35 years, Occupation – Cultivator, R/o Hinganghat, District Wardha. :: PETITIONER -: Versus :- Hinganghat Nagari Sahakri Pat Sanstha a registered co-operative credit society through its Manager, having registered office at Main Road, Hinganghat, District Wardha. :: RESPONDENT -------------------------------------------------------------------------------------------- Shri P.P. Kotwal, Advocate for the petitioner. None for the respondent. -------------------------------------------------------------------------------------------- CORAM : R.Y. GANOO, J. DATE : 4th AUGUST, 2009 P.C. 1. The petitioner is facing trial under Section 138 of the Negotiable Instruments Act in the Court of Judicial Magistrate First Class, Hinganghat. The petitioner filed application at Ex. 75 requesting that the impugned cheque be sent to the Handwriting Expert so that the handwriting on the body of the impugned cheque tallies or otherwise. He also prayed that paying slip filling by the bank be also sent to the Handwriting 2 Expert so that the Handwriting Expert can give an opinion as to whether the handwriting in the slip and handwriting on the body of the impugned cheque tallies or otherwise. While doing so, the petitioner had admitted that a blank cheque ( without filling particulars) duly signed by the petitioner was handed over by the petitioner to the complainant-respondent as and by way of a security for the loan transaction. The said application at Ex.75 came to be rejected by the learned Judicial Magistrate First Class, Hinganghat by order dated 21st May, 2005. Against the said order the petitioner filed Criminal Revision No.78/2009 in the District Court, Wardha. The same came to be assigned to the learned Sessions Judge, Wardha who by his judgment and order dated 3rd July, 2009 dismissed the said revision. 2.Against both these orders the petitioner has filed this revision with a view to see that his application at Ex.75 would be granted. 3. I have extensively heard learned Advocate for the petitioner. He had brought to my notice certain dates which according to him indicate that he was not in a position to attend to the matter in the proper perspective. But ultimately at one stage 3 after conducting the cross-examination of the complainant, after the complainant was recalled, he had filed an application at Ex. 75. 4. According to the learned Advocate for the petitioner, the impugned cheque was given by way of a security and the employees of the complainant bank have filled in the cheque so as to make it a large amount of Rs.1,00,000/- and have misused the said cheque. According to the petitioner, if the Handwriting Expert would give an opinion as regards the tallying on the Handwriting on the body of the cheque and on the paying slip that would help the petitioner to argue that the complainant has misused the said cheque. It is with this the petitioner had submitted before this Court that the application at Ex.75 ought to have been allowed. 5. He has relied on the Judgment in the case of T. Nagappa Vs. Y.R. Muralidhar reported in 2008 (6) Mh.L.J. 515 and has submitted that the Hon’ble Supreme Court has observed that the accused must have a fair trial and must get a chance to defend his case and that the Court should allow the said accused to attend to the trial as the accused may like. I have perused the text of the said Judgment. 4 6. There is no dispute about the proposition which is pressed by the learned Advocate for the petitioner. The only question is whether the sending of the impugned cheque as well as the paying slip to the Handwriting Expert is necessary or otherwise. 7.It is the positive case of the petitioner that a blank cheque was given to him by the complainant. This will mean that the signature on the cheque was admitted by the petitioner. This will also mean that chque had handed over to the complainant an “inchoate” instrument as envisaged under the Negotiable Instruments Act. If this is so impliedly the petitioner had permitted to fill the particulars of the cheque i.e. on the body of the cheque as may be found necessary. If it is the defence of the petitioner that the cheque has been misused by the bank and the cheque was given as and by way of security, in my view, there was no question of trying to bring that the handwriting on the body of the impugned cheque as well as on the paying slip is that of the bank authorities. The fact that the cheque was given to the bank is admitted by the petitioner. It is also not the case of the petitioner that the said cheque was misplaced by the bank authorities and somebody else by filled body of the impugned cheque. Therefore, the 5 only point which remains to be considered is whether the blank cheque given by the petitioner to the complainant has been misused by the bank and whether the said cheque was given as and by way of security and or whether the said cheque has been misused by the bank for the purposes of trying to recover amount which the complainant is not entitled to. In my view, in order to decide these two questions, there is no need to obtain an opinion from the Handwriting Expert in support so as to certify that the handwriting on the body of the text and the paying slip is of one and the same person. It is also necessary to mention that the petitioner has not stated specifically the name of a particular person who has said to have scribed the said slip as well as the body of the impugned cheque. In my view, in order to unfold defence of the petitioner which is stated by him, the handwriting opinion is not required. What is required to be proved by the petitioner is viz. the said cheque was handed over in blank to the complainant bank as and by way of security. If that defence is put up before the learned trial judge and such a defence is accepted, it is immaterial who has filled in the cheque because the said impugned cheque was handed over by the petitioner to the bank staff. 6 8.The aforesaid discussion was very much relevant for the purposes of deciding the matter in question. For the reasons mentioned aforesaid, I am not inclined to interfere in the impugned order and the petition is required to be dismissed at the stage of admission. Hence the order. Petition is dismissed at the stage of admission. JUDGE pma