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2013 DIGILAW 2009 (BOM)

Sayaji v. State of Maharashtra

2013-09-27

ABHAY M.THIPSAY

body2013
JUDGMENT: Heard. 2. In view of what transpired on the last date of hearing, Mr. G.K. Naik Thigale, the learned counsel for the respondent no.2 submits that there is no question of arriving at any settlement with the petitioner, as indicated by Mr. C.V. Dharurkar, the learned counsel for the petitioner. 3. Under the circumstances, Rule. By consent Rule is made returnable, forthwith. By consent heard finally. 4. The petitioner is an accused in S.C.C. No. 1084/2008 pending before the Additional Chief Judicial Magistrate, Beed. The said case is in respect of an offence punishable under Section 138 of the Negotiable Instruments Act and arises on a complaint filed by the respondent no.2 herein. The trial is in progress. On 08.02.2013, when the case before the Magistrate was kept for recording of defence evidence, the petitioner made an application (Exhibit 68) contending therein that the cheque in question had not been issued by the petitioner, and that the handwriting and signature on the cheque is not of the petitioner. The petitioner also claimed that in the cross examination of the respondent no.2, such a defence had been taken by the petitioner but, the respondent no.2 claimed the handwriting and signature on the cheque in question, to be that of the petitioner. By contending this in the said application, the petitioner submitted that it was necessary to send the specimen signature of the petitioner and his handwriting to an expert, for ascertaining whether the signature and handwriting on the cheque are of the petitioner. The petitioner offered to bear the expenses of sending the cheque to the expert for obtaining the opinion. 5. This application was opposed on behalf of the respondent no.2. I have gone through a copy of reply to the said application, as given on behalf of the respondent no.2. In the reply, there has been much emphasis on the fact that the petitioner had indeed taken a loan from the respondent, and that he had taken loan was not in dispute. It has submitted that the Court was competent to make comparison of the admitted signature of the petitioner i.e. the accused with the signature on the cheque, and that therefore, it was not necessary to have any opinion from any expert in that regard. It has submitted that the Court was competent to make comparison of the admitted signature of the petitioner i.e. the accused with the signature on the cheque, and that therefore, it was not necessary to have any opinion from any expert in that regard. It was also contended that ‘if the cheque had not been issued by the petitioner, then how it had come to the respondent no.2, had not been explained and this aspect was not touched by the petitioner in the cross examination of the witnesses for the complainant.’ It was submitted that the application had been made for protracting the trial and therefore, the same be dismissed. 6. The learned Magistrate observed that, that the accused had obtained the loan of Rs. 20 Lacs in the year 2004, was not in dispute. That, the cheque in question had been given by the accused in the year 2008, and that the proceedings had been pending since the year 2008. The Magistrate also observed that the presence of the accused could be secured only in the year 2011. That, his plea was recorded in the year 2012, and that the proceedings under Section 138 of the Negotiable Instruments Act are expected to be decided within a span of six months. He also observed that the petitioner had never denied that he did not obtain the loan from the complainant bank. Observing this, the Magistrate dismissed the said application. 7. The approach of the learned Magistrate in the matter is totally erroneous and contrary to the well settled principles of law. 8. The petitioner had taken a specific plea viz:- that the handwriting, as also the signature on the cheque in question, was not of his. This stand is such a basic stand that if the same is established, it would be fatal to case of the complainant. It was therefore absolutely necessary to provide the petitioner with an opportunity to establish this claim of his. 9. Significantly, the learned Magistrate did not come to the conclusion ‘that the plea taken by the petitioner was false’, or that ‘the signature on the cheque was actually that of the petitioner only’. As a matter of fact, the learned Magistrate did not consider this question at all. What he considered is whether a loan had indeed been taken and whether the petitioner was under liability to repay the loan amount. As a matter of fact, the learned Magistrate did not consider this question at all. What he considered is whether a loan had indeed been taken and whether the petitioner was under liability to repay the loan amount. These considerations were not relevant in the context of the application that had been made. Even if the petitioner is liable to pay the loan, one can not suggest the complainant society would be entitled to forge a cheque and recover the loan amount rightfully due to them. Obviously, such a suggestion is absurd and all that the Magistrate ought to have considered is whether the prayer of the petitioner to send the cheque for obtaining the opinion of handwriting expert was made for the purpose of vexation or for delay, or for defeating the ends of justice. No such conclusion had been arrived at by the Magistrate – rather he did not examine the matter from this view point at all. Apparently, the Magistrate was of the view that when the fact of having taken loan is not in dispute, the petitioner cannot raise a plea that the signature on the cheque was not his. 10. Interestingly, while opposing the application made by the petitioner, even the respondent no.2 did not make any assertion that the signature and/or writing on the cheque is that of the petitioner only, and/or that it was not necessary to have any opinion of the handwriting expert in that regard. Even in the reply, the emphasis is on ‘the petitioner having taken loan and that it being his responsibility to repay the loan’ etc.. The contention raised that ‘if the petitioner had not given the cheque, how the same had come to the respondent no.2 is unexplained’, had no meaning, as that would be considered by the Magistrate while considering the evidence as adduced before him during the trial. 11. The evidence sought to be collected and brought on record, as intended by the petitioner, was undoubtedly relevant and admissible. That it was not so, was not contended before the Magistrate. It was necessary for the Magistrate to have permitted the evidence to be adduced for which, it was necessary to allow the application and send the cheque to the expert for his opinion. 12. That it was not so, was not contended before the Magistrate. It was necessary for the Magistrate to have permitted the evidence to be adduced for which, it was necessary to allow the application and send the cheque to the expert for his opinion. 12. The learned counsel for the respondent No.2 submitted that the matter may be remanded back to the learned Magistrate for applying his mind towards the real issue involved in the matter. However, since after having examined the matter, it appears proper that the petitioner should be given an opportunity to establish his claim - rather boldly putforth by him – it is not necessary to remand the matter for a fresh consideration by the Magistrate. 13. The learned counsel for the respondent no.2 drew my attention to a decision of this Court in the case of “Simratmal Hiralal Gandhi V/s Kedarnath Badrinarayan Bang and ors” {2011(3) Bom.C.R. (Cri.) 584}. He particularly laid emphasis on para 8 of the said judgment. In my opinion, the observations in para 8 of the said judgment are not relevant in the context of the present controversy, in as much as, here the signature on the cheque itself has been categorically disputed. 14. The impugned order is patently illegal and contrary to the principles of Criminal Jurisprudence. It, therefore needs to be interfered with by exercising the constitutional jurisdiction of this Court. 15. The Petition is allowed. The impugned order is set aside. The learned Magistrate shall allow the application (Exhibit 68) and thereafter proceed further with the case in accordance with law. The learned Magistrate shall endeavour to dispose of the case within a period of two months from the receipt of the opinion of the Handwriting expert. 16. The Petition is allowed in the aforesaid terms. 17. Rule is made absolute accordingly.