Partly allowed

Omkesh Laxmanrao Dahiphale v. the State of Maharashtra and Anr.

Bombay HC24 Feb 2014WP/165/2014

Case brief

AI extract

What is this about?

The High Court held that the Magistrate erred in rejecting an accused's application for expert opinion on handwriting and signature on a cheque in a dishonour case. The Court set aside the rejection and permitted the evidence.

What did the court decide?

Impugned order set aside; application to send cheque to expert for handwriting and signature opinion allowed; trial to be expedited within three months of expert opinion.

Omkesh Laxmanrao Dahiphale Vs the State of Maharashtra and… — Cheque Dishonour | Bombay HC (2014)

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(1)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

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Criminal Writ Petition No. 165 of 2014

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Omkesh s/o. Laxmanrao Dahiphale, Age : 50 years, Occupation : Business, R/o. C/o. B.B. Chavan sir, Gitta road, Near Bhagwan Baba Chowk, Krishnai Niwas, Ambajogai, Taluka : Ambajogai, District : Beed.

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.. Petitioner (Original accused)

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versus

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The State of Maharashtra.

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Santosh s/o. Raghunath Thengal, Age : 34 years, Occupation : Agriculturist, R/o. Bansarola, .. Respondents Taluka : Kaij, (No.2 - Original District : Beed. complainant)

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Mr. H.V. Tungar, Advocate, for the petitioner.

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Mr. P.P. More, Additional Public Prosecutor, for the respondent no.1.

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Mr. Rajendra S. Deshmukh, Advocate, for the respondent no.2.

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(2)

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CORAM : ABHAY M. THIPSAY, J.

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DATE : 24TH FEBRUARY 2014

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ORAL JUDGMENT :

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Heard Mr. H.V. Tungar, the learned Counsel for the petitioner. Heard Mr. P.P. More, the learned Additional Public Prosecutor for the respondent no.1 - State. Heard Mr. R.S. Deshmukh, the learned Counsel for the respondent no.2.

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Rule. By consent, Rule made returnable forthwith. The respondents waive service. By consent, heard finally.

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The petitioner is the accused in S.C.C. No. 536 of 2010, pending before the Judicial Magistrate (First Class), Ambajogai. The case arises on a complaint filed by the respondent no.2 herein (hereinafter referred to as "complainant" ), and is in respect of offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The evidence of the complainant is over. The defence evidence is being adduced. In the course of leading of defence evidence, the petitioner (hereinafter referred to as "accused" ) made an application praying that the cheque in question be sent to a handwriting expert for obtaining his opinion with respect to the signature on the cheque and with respect to the other matter written thereon i.e. name, date, amount of cheque, etc. The petitioner also prayed that the cheque be sent to an expert for determination of the age of the ink by which the matter on the cheque was written, as also, the age of the ink in respect of the signature on the cheque. This application (Exhibit 83)

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(3)

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was rejected by the learned Magistrate by his order dated 21-1-2014. Being aggrieved thereby, the petitioner has approached this Court invoking its constitutional jurisdiction.

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In the complaint, the complainant has stated that the cheque was written and signed by the accused in the presence of two witnesses (para 3 of the complaint).

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In his affidavit of evidence, in lieu of examination in chief, also, the complainant has stated that ‘the accused made his signature on the cheque in question, in the presence of witnesses and also wrote the amount thereof’.

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One of the said two witnesses was examined by the complainant in the course of trial and he said that ‘the cheque in question was signed by the accused in his presence and also in the presence of one Bajrang Tapadiya’.

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In his evidence, the petitioner stated, categorically, that he had not given the cheque in question, in the presence of any witnesses. That, the cheque in question had not been given on 7-4-2010. That, the cheque had been given as and by way of security on 5-3-2009. That, the complainant had misused the blank cheque and filed a false case.

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I have gone through the impugned order. The reasoning of the learned Magistrate is found in para 7 thereof.

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(4)

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The learned Magistrate, inter alia , observed that ‘Section 73 of the Evidence Act empowered him to compare the signature, writing with other admitted papers’. The Magistrate also observed that the accused had raised the objection about the ink, signature and amount at a belated stage. It is for these two reasons that the application came to be rejected.

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The impugned order seems to be erroneous.

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The learned Counsel for the respondent no.2 attempted to suggest that, since that the accused had received an amount of Rs. 2,00,000/- which was given to him by demand draft, has already been established, ascertaining the aspects about the identity of the writing, signature, etc, is not relevant. The learned Counsel also submitted that, in view of the fact that the court was competent to decide the question of the identity of the handwriting, in view of the provisions of Section 73, the decision not to send the cheque to the expert was proper and legal.

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Undoubtedly, the court has been given power to compare the writings and form its own opinion about the identity thereof. However, that, such power exists with the court, does not mean that a party cannot adduce evidence before the court to prove his or her contention. It may be observed that even if handwriting expert's opinion is obtained, the court would still retain its power to compare the writing and form its own opinion. The opinion of the handwriting expert would only be a piece of evidence, which like any other piece of evidence, should be weighed or considered during the trial.

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(5)

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Since there is a categorical assertion about the matter on the cheque also having been written by the accused himself, the opinion of the handwriting expert thereon cannot be said to be irrelevant or inadmissible.

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That, such a prayer was belatedly made also cannot be accepted. In the cross examination itself, suggestion has been given that the matter on the cheque has not been written by the accused. The evidence of the accused is being adduced. If at that stage, the prayer to seek opinion of the handwriting expert in support of the claim of the accused is made, it cannot be said to have been made belatedly.

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It cannot be said that the application has been made for the purpose of vexation, or for delaying, or for defeating the ends of justice. Though delay may occur because of the time required for obtaining opinion of the handwriting expert, it is difficult to hold that the application has been made for that purpose .

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So far as the prayer to obtain the opinion of an expert with respect to the age of the ink is concerned, it does not appear that such an opinion can be obtained in the absence of any details as to the ink that was used. It is also doubtful, whether the facilities of obtaining of such an expert's opinion are available in India. In the course of hearing, the learned Counsel for the petitioner, on instructions, gives up that part of the prayer.

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In my opinion, in the facts of the case, the petitioner should be allowed to adduce evidence in the form of opinion of an expert as to the

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(6)

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writing and signature on the cheque.

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18. The petition is partly allowed.

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The impugned order is set aside.

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The learned Magistrate shall allow the application - Exhibit 83 - in so far as it relates to sending the cheque to an expert for obtaining opinion with respect to the handwriting thereon and the signature thereon.

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The learned Magistrate shall give appropriate directions to the parties in that regard and may even require the costs of the expert to be deposited in the court before the cheque is sent for the expert's opinion.

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The learned Magistrate shall expedite the trial and endeavour to complete it within a period of three months from the date of receipt of the opinion of the expert.

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The petition is disposed of in the aforesaid terms. Rule is made absolute accordingly.

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JUDGE

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bgp/CrWP165

Omkesh Laxmanrao Dahiphale v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Omkesh Laxmanrao Dahiphale v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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