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2004 DIGILAW 1343 (AP)

Neelakantappa v. M. Munirathnam

2004-11-10

C.Y.SOMAYAJULU

body2004
C. Y. SOMAYAJULU, J. ( 1 ) RESPONDENT filed a private complaint under Section 138 of Negotiable instruments Act against the petitioner, which was taken cognizance as CC No. 482 of 2002 by the learned Magistrate. In that case, the petitioner filed Crl. M. P. No. 1530 of 2004 to send the dishonoured cheque, to a Handwriting expert for comparison with his admitted signature on the Vakalath. First respondent filed a counter contending that in case the Court were to allow the said petition, served copy of summons, specimen signatures of the petitioner available in the bank account and personal service records in APSRTC, Adoni which contain the admitted signatures of the petitioner also may be sent to an Expert. By the order dated 15. 4. 2004, the learned Magistrate allowed Crl. MP No. 1530 of 2004 and directed the dishonoured cheque, and the signatures of the petitioner taken in open court be sent to an Expert for his opinion. Thereafter, first respondent filed Crl. M. P. No. 3152 of 2004 seeking leave of the Court to send the Vakalath, summons, signatures of the petitioner on 313 Cr PC, specimen signatures of the petitioner in the bank at the time of opening of the account etc. also for comparison with the disputed signature of the petitioner on the dishonoured cheque to the Expert. In spite of opposition by the petitioner, by the order impugned in this petition the learned Magistrate allowed the aforesaid Crl. M. P. No. 3152 of 2004. Hence this petition challenging the said order. ( 2 ) THE contention of the learned counsel for the petitioner is that since first respondent had in Crl. M. P. No. 1530 of 2004 took a plea that in case the dishonoured cheque is to be sent to an expert for his opinion, the documents mentioned in his counter also be sent to the Expert, but since the learned Magistrate while allowing the said petition directed sending of the signatures of the petitioner only for comparison with the signatures on the dishonored cheque it should be deemed that the request made in the counter of first respondent was negatived and so first respondent filing a separate petition to send some more documents to Expert for comparison with the disputed signature is not maintainable because allowing of that petition tantamounts to reviewing the earlier order passed in Crl. M. P. No. 1530 of 2004 and since the Trial Court has no power to review its earlier order, the order allowing Crl. M. P. No. 3152 of 2004 is liable to be set- aside. ( 3 ) I am unable to agree with the contention of the learned Counsel for the petitioner that allowing of Crl. M. P. No. 3152 of 2004 tantamounts to reviewing the earlier order passed in Crl. M. P. No. 1530 of 2004, the operative portion of which reads:"this is a Trial Court all opportunities shall be given to parties, since the accused denied the signature on the cheque involved in the present case therefore, it is just and necessary to send the cheque with that of the admitted signatures taken in the court and also the signature on the Vakalath. In the result, the petition is allowed and send the cheque along with admitted signatures of the accused to the Hand writing Expert for comparison and opinion to hand-writing Expert, Director of R. F. S. L. , Hyderabad. "from the above order it is seen that the learned Magistrate did not even take into consideration the request of the first respondent to send the documents which contain the admitted signatures of the petitioner. Had the learned Magistrate considered the request of the first respondent in the counter and negatived that request, there might have been some force in the contention of the petitioner that the order impugned amounts to reviewing its earlier order. Since there is every possibility for a party to disguise his signatures in the vakalath or memo of appearance and while signing in open Court signature on the vakalath (memo of appearance) and the signatures taken in the open Court, strictly cannot be taken as admitted signatures for purpose of comparison with disputed signature. The signatures made while opening of the bank account and on the summons and on the postal acknowledgment, service register etc. made, when the dispute did not arise would be admitted signatures fit for comparison with the disputed signature. So the learned Magistrate directing the signatures on the documents mentioned in crl. M. P. No. 3152 of 2001 being sent for comparison with the signature on the dishonoured cheque, does not warrant any interference and so I find no grounds quash the order dated 16. 8. 2004 in Crl. M. P no. 3152 of 2004. So the learned Magistrate directing the signatures on the documents mentioned in crl. M. P. No. 3152 of 2001 being sent for comparison with the signature on the dishonoured cheque, does not warrant any interference and so I find no grounds quash the order dated 16. 8. 2004 in Crl. M. P no. 3152 of 2004. ( 4 ) CRIMINAL petition is dismissed.