Town Center, Near Income Tax Office, Cidco, Aurangabad v. Vishwajit Pratapsing Pardeshage-37 Years, Occ-Agricultureage-37 Years, Occ-Agriculture

IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.984 OF 2010 Baburao Madhavrao Munnemanik PETITIONER Age-53 years, Occ-Service, R/o Jivan Suman, Plot No.3, N-5 Town Center, Near Income Tax Office, CIDCO, Aurangabad VERSUS 1.Vishwajit Pratapsing PardeshAge-37 years, Occ-AgricultureAge-37 years, Occ-Agriculture R/o 41, Mathura Kunj, Bhgyodayanagar, Ambad Road, Jalna, At presentR/o LIC Office Bhokar, Tq-BhokarDist-Nanded RESPONDENTS 2.The State of Maharashtra ....... Mr.D.M.Shinde, Advocate for the petitionerMr.A.M.Karad, Advocate for respondent No.1Mr.N.R.Shaikh, APP for respondent State ....... [CORAM : A.V.POTDAR, J.] ORAL JUDGMENT: DATE: 26[th ]April 2011 1.On the oral request, leave to add State as party respondent No.2. Amendment to be carried forthwith. Learned APP accepts notice for respondent No.2. 2.Rule was issued in this petition on 13.12.2010. 3.By this petition, under Article 227 of the Constitution of India, the petitioner-accused has challenged the order dated 20.06.2010 passed by JMFC, Jalna below Exhibit-46 in STC No.466/2009, which is confirmed vide dated 16.09.2010 passed by learned Sessions Court in Revision Application No.86/2010. 4.Such of the facts, as are necessary for the decision of this case, may briefly be stated thus- Respondent No.1 had filed complaint STC No.466/2009, u/s 138 of the Negotiable Instruments Act, against the present petitioner before JMFC, Jalna. The petitioner, in response to summons, had appeared in the said proceedings. It appears that thereafter the parties were put to trial and respondent No.1 lead evidence and closed the same on 28.06.2009. It further appears that thereafter an application came to be moved by the applicant at Exhibit-46 thereby requesting to refer the cheques in question to the expert for determination of age of ink, signature and other format on the cheques, as according to him the disputed cheques were given by him to the respondent by way of security and the blank places are filled by the respondent conveniently, so as to suit his case. It also appears that learned JMFC, rejected the drp application (Exhibit-46) vide impugned order dated 28.06.2010. Thereafter, it appears, the petitioner challenged the said order dated 28.06.2010 before learned Sessions Judge, Jalna by preferring Criminal Revision No.86/2010, which also came to be dismissed. Hence, the present petition. 5.During the course of submissions, learned counsel for the petitioner placed reliance on the observations of the Apex Court, in the matter of “T.Nagappa V/s Y.R.Muralidhar” 2008 (5) SCC 633. The Apex Court, in the said judgment, has referred the observations in the matter of“Kalyani Baskar V/s M.S.Sampoornam” (2007) 2 SCC 258, which read thus- “12. Section 243 (2) is clear that a Magistrate holding an inquiry under Cr.P.C. in respect of an offence triable by him does not exceed his powers under Section 243 (2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. The cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinino of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. “Fair trial” includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them.” 6.The present petitioner, though does not dispute signature on the cheques in question, yet according to him the said cheques were given to respondent No.1 by way of security, which are misused by him by filing up the places in the cheque conveniently so as to suit his case. It is further urged that it is imperative to send the cheques in question to the expert so as to determine the age of the ink used for signature and age of the ink used to fill up other details. As observed by the Apex Court, in the above referred judgment, for fair trial, this exercise is required to be carried out. In the premise, the application (Exhibit-46) requires to be allowed. 7.Consequently, the petition succeed. The impugned orders are quashed and set aside. The application (Exhibit-46) in STC No.466/2009 pending on the file of JMFC, Jalna is allowed. Rule is made absolute as indicated above with no order as to costs. 8.At this juncture, learned counsel for respondent No.1 requested that considering the age of the trial, time bound programme be given to the trial court to carry out the exercise of sending the disputed cheques to expert and collect the report of the expert. In the premise, the parties are directed to appear before the trial court on 04.05.2011, thereafter, learned JMFC, to refer the disputed cheqeus to the expert concerned with directions to determine the age of the ink used for signature so also the age of the ink used for filling up of other particulars and call for the report of the expert within 3 months. Learned JMFC is further directed to decide the case in accordance with law, after receipt of the report from expert as expeditiously as possible. Parties to act on the authenticated copy of this order. [A.V.POTDAR, J.] drp/A11/cwp984-10