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2012 DIGILAW 1817 (BOM)

Avinash s/o Ramkrushna Lokhande v. Miyasaheb Gramin Bigarsheti Sahakari Patsanstha Ltd.

2012-09-26

SHRIHARI P.DAVARE

body2012
Judgment 1. Heard learned counsel for the parties. 2. Rule. Rule made returnable forthwith. By consent of learned counsel for the parties, taken up for final hearing at the admission stage itself. 3. The petitioner herein is the original accused in criminal case bearing No. S.T.C. 494 of 2009, filed under Section 138 of Negotiable Instruments Act 1881 (hereinafter for the sake of brevity referred to as "the said Act"), whereas the respondent is the original complainant therein. The factual matrix of the case, for deciding the instant writ petition, are as under:- 4. The respondent Patsanstha has contended that the petitioner had applied for loan for the purpose of business and accordingly the petitioner has executed necessary documents. It is further contended that for repayment of the loan amount, the petitioner has issued a cheque No. 611005, dated 29.5.2009, for an amount of Rs.2,57,295/-. It is further contended that the said cheque was presented for encashment on 13.6.2009. However, the said cheque was dishonoured and returned unpaid with a reason "funds insufficient". Hence, the respondent issued notice to the petitioner on 22.6.2009. The petitioner replied the said notice on 24.6.2009. However, it is the contention of the respondent that the petitioner failed to pay the amount, involved in the cheque, to the respondent. Hence, the respondent filed complaint against the petitioner being S.T.C. No. 494 of 2009. The said complaint was verified by the respondent on 17.9.2009. Accordingly, the learned trial court issued process against the petitioner under Section 138 of the said Act. After service, the petitioner appeared in the said complaint and submitted bail bonds. Thereafter, the respondent filed affidavit of examination in chief below Exh.13 on 9.3.2010. The petitioner cross examined the respondent on 24.12.2010 and on 10.2.2011 and also adduced/produced his evidence and even statement of petitioner under Section 313 of Cr.P.C. was recorded. 5. It is the contention of the petitioner that the respondent had taken blank cheques from the petitioner at the time of grant of loan and the said cheques were misused by the respondent. Hence, the petitioner preferred an application below Exh.47 on 11.1.2012 before the learned trial court praying that the disputed cheque in question at Exh.15 be sent to hand writing expert for verification of the handwriting and signature thereon. The respondent opposed the said application by filing reply. Hence, the petitioner preferred an application below Exh.47 on 11.1.2012 before the learned trial court praying that the disputed cheque in question at Exh.15 be sent to hand writing expert for verification of the handwriting and signature thereon. The respondent opposed the said application by filing reply. Accordingly, the learned trial court passed an order on the said application No. 13.2.2012 and rejected the said application observing that the accused has not specifically denied the signature on the cheque in question (Exh.15). 6. Being aggrieved and dissatisfied with the said order 13.2.2012 passed by the learned J.M.F.C. the petitioner has preferred the present petition challenging the said order with the prayers as mentioned in the present petition. 7. Learned counsel for the respondent countered the said arguments and opposed the present petition vehemently, and submitted that the petitioner has nowhere specifically denied his signature on the disputed cheque in question at Exh.15. He also canvassed that Section 20 of the said Act authorizes the Payee or holder in due course of the cheque to complete an incomplete negotiable instrument and hence, it is submitted that there is no necessity to send the cheque in question to hand writing expert for verification of the handwriting of the said cheque, and to call expert's opinion. It is further submitted that the application preferred by the applicant is only with an ulterior motive to protract the trial. Hence, it is submitted that the learned trial court has rightly rejected the application and no interference is warranted therein in the present writ petition. Accordingly, he urged that the present petition be dismissed. 8. I have perused the present petition, its annexures, substance of evidence annexed thereto, disputed cheque in question at Exh. 15 (page 31), the application dated 11.1.2012 (Exh.47) filed before the lower court by the petitioner, say filed by the respondent and the impugned order dated 13.2.2012, passed by the learned trial court rejecting the said application preferred by the petitioner and heard rival submissions advanced by the learned counsel for the parties. 9. At the outset, it appears that the parties have adduced/produced their respective evidences before the learned trial court and even the statement of the petitioner-accused has been recorded under Section 313 of the Code of Criminal Procedure. 9. At the outset, it appears that the parties have adduced/produced their respective evidences before the learned trial court and even the statement of the petitioner-accused has been recorded under Section 313 of the Code of Criminal Procedure. Thereafter, the petitioner has preferred an application Exh.47 on 11.1.2012 requesting to send the disputed cheque in question to the hand writing expert for verification of the hand writing and signature thereon and to call expert’s opinion in that regard. However, the petitioner has nowhere disputed/denied his signature on the cheque in question (Exh.15) and the substance of the evidence is silent in that respect. Hence, the fact remains that the petitioner has nowhere specifically denied the signature on the disputed cheque in question. Moreover, Section 20 of the said Act authorizes the Payee or the holder in due course to complete an incomplete negotiable instrument. Hence, in that view of the matter, there was no necessity to send the disputed cheque in question to the hand writing expert for verification of hand writing and signature thereon and the learned trial court has rightly rejected the application preferred by the petitioner on 13.2.2012. Hence, there is no error in the impugned order, and therefore, no interference is called for therein. Hence, present petition deserves to be rejected. 10. In the result, present petition lacks merits, and therefore, same stands dismissed. Rule is discharged accordingly.