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2013 DIGILAW 1765 (BOM)

Shyam Vitthal Udawant v. State of Maharashtra

2013-08-30

P.D.KODE

body2013
JUDGMENT Rule is made returnable forthwith and heard finally with the consent of Shri Chopde, learned counsel for the petitioner, Shri Mirza, learned APP for respondent No.1 and Shri Patre, learned counsel for respondent No.2. 2. By the present petition, the accused, in a cheque bouncing case, assails the order passed by the trial Court rejecting his application for calling an expert opinion about the Handwriting upon the disputed cheque and maintaining of the said order by the Court of Sessions, by dismissing an application in revision preferred by him. 3. Considering the short controversy involved in this petition, it would not be necessary to recite in detail about the matters involved in the case except stating that Respondent No.2 has made the said complaint against the petitioner for having committed the offence under Section 138 of the Negotiable Instruments Act, on the ground of his failure to pay the demanded amount after the demand notice was served upon him after the cheque handed over to the opponent for the liability was bounced, and was returned by the Bank. In the said case, it is the defence of the petitioner that he had handed over the blank cheque. 4. Shri Chopde, learned counsel for the petitioner, assails the order passed by the trial Court by submitting that respondent No.2, during his evidence, having claimed that the petitioner has given a written cheque, it was necessary to call the opinion of an expert for substantiating the defence of the petitioner that he has handed over the signed blank cheque. The learned counsel submits that the same was necessary as the establishment of such a facet would adversely affect the other claims stated by respondent No.2 on oath. In short, it is his submission that establishing of such a facet was necessary for proper appreciation of the evidence of the complainant for evaluating the truthfulness or falsity of the accusations levelled by him: Shri Chopde, learned counsel states that non giving of such an opportunity to the petitioner would result in not giving him a fair and equal opportunity at a trial, to establish his case. He submits that such an opportunity is denied only on the count of the petitioner having admitted his signature on the cheque and the orders impugned, passed by the trial Court as well as revisional Court, failed to appreciate the purpose for which the petitioner intended to obtain the opinion of an expert i.e. not regarding the signature part on the cheque but other matter recorded on the cheque. 5. Shri Chopde, learned counsel further contends that the application was made soon after the evidence of the petitioner was adduced in the case and before the case was closed for argument. It is submitted that since denial of such an application, in the light of facts and circumstances of the case, resulted in denial of a fair trial to the petitioner, the impugned order passed by the trial Court as well as maintained by the Court of Sessions, deserves to be quashed and set aside. 6. Shri Patre, learned counsel for respondent No.2 submits that the cross examination of the complainant was over by 5th March 2012. He submits that the application was preferred after about eight months i.e. on 29th December 2012 for such purpose. It leads to the conclusion that the petitioner was deliberately trying to prolong the matter without any reasonable cause and hence such observations made by the trial Court, cannot be faulted with. He submits that it may take number of years for obtaining the opinion from Government Handwriting expert as there are only two experts in the Government field and they are heavily burdened with the work. He states that in the event of Court is inclined to accede with the prayers in the application for giving an opportunity to the petitioner, then completion of the proceedings before the trial Court be made time bound for serving the ends of justice. 7. Shri Chopde, learned counsel for the petitioner in response to the submissions advanced by the learned counsel for respondent No.2 - opponent submits that the petitioner is not at all interested in prolonging the proceedings before the trial Court and hence in stead of granting improperly worded prayer in the application, his request be considered for obtaining the opinion of a private expert regarding the handwriting upon the disputed cheque and adducing his evidence at the trial. 8. 8. After giving thoughtful consideration to the submissions advanced by both the sides and examining the cryptic order passed by the trial Court, there appears substance in the submissions canvassed that the order does not reveal that the trial Court has taken into consideration the real purpose for which the application was made i.e. for obtaining the opinion of an expert regarding the other matters written on the said cheque. It is indeed true that the petitioner has not immediately applied to the trial Court after evidence of the complainant was over and such an application has been prepared after about nine months. However, having regard to the fact that such an application could not have been made prior to the stage of evidence of the accused, merely on the said count, the rejection of an application appears to be improper. Though it is true that as observed by the Court of Sessions, the proceedings under Negotiable Instruments Act are to be disposed of within a period of six months, the practical experience reveals that such a insistence cannot be made due to pendency of large number of cases before the trial Court as well as the practical difficulties arising in completion of such proceedings, difficulties cropped like in the instant case i.e. obtaining of an opinion of the Expert, within a short time. 9. Thus, considering the real purpose for which the application was made and the prayer made in the application by the learned counsel for the petitioner, the present petition deserves to be disposed of by quashing and setting aside the orders impugned in the petition and permitting the petitioner to adduce the opinion of his own Expert regarding the matters recorded on the disputed cheque. The petitioner for such purpose is permitted to apply to the trial Court for fixing a date for examination of the disputed cheque by his expert in the Court including taking of the photograph of the same and so also the other documents containing the admitted handwriting, if any, for enabling him to form an opinion regarding the relevant matter. 10. The petitioner to apply to the trial Court for such purpose within a period of seven days from today. The trial Court to pass appropriate order on such an application as early as possible and fix the date for examination of such cheque by an Expert of the petitioner. 10. The petitioner to apply to the trial Court for such purpose within a period of seven days from today. The trial Court to pass appropriate order on such an application as early as possible and fix the date for examination of such cheque by an Expert of the petitioner. The Handwriting Expert of the petitioner shall do the necessary examination in the trial Court in the presence of the Registrar/ COC of the said Court. The petitioner shall obtain the opinion of his Handwriting Expert within a period of one month from the date of the examination. The petitioner to adduce the evidence of his expert within a reasonable time and in any case within a period of one month thereafter. The trial Court to dispose of the entire case within a period of four months from today. 11. Criminal Writ Petition is disposed of accordingly. Rule is made absolute in the above terms. Ordered accordingly.