Allowed

Vijay Pukhraj Jain v. Kishor Keshav Manjarekar and Anr.

Bombay HC4 Oct 2022WP/2218/2021

Case brief

AI extract

What is this about?

The High Court quashed the Magistrate's order rejecting an application for a handwriting expert opinion. Relying on Article 227 and Section 311 CrPC, the Court held that securing expert opinion was necessary for just adjudication despite evidence closure.

What did the court decide?

The impugned order of the Metropolitan Magistrate was quashed and set aside; the application for sending disputed cheque for handwriting expert opinion was allowed.

Vijay Pukhraj Jain Vs Kishor Keshav Manjarekar and Anr. — Cheque Dishonour | Bombay HC (2022)

¶1

42-crwp2218-2021.doc

¶2

Kiran Ghuge

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

¶4

CRIMINAL WRIT PETITION NO.2218 OF 2021

¶5

Vijay Pukhraj Jain …Petitioner
V/s.
Kishor Keshav Manjarekar & Anr.…Respondents

¶6

Mr. Manish N Jain a/w Ms. Ritu G Gahlot i/b S.M. Jain
Associates for Petitioners.

¶7

Mr. A.D. Kamkhedkar, APP for the State.

¶8

CORAM: AMIT BORKAR, J.
DATE: OCTOBER 4, 2022

¶9

P.C.:

¶10

1.By this writ petition under Article 227 of the Constitution of
India, the petitioner is challenging order dated 11th February 2021
rejecting request of the petitioner to sent the disputed cheque to
the handwriting expert.

¶11

2.The complaint arises out of section 138 of the Negotiable
Instruments Act, 1881. According to the petitioner, he had granted
friendly loan to the accused on execution of promissory note. Two
post-dated cheques were issued by the accused in favour of the
petitioner. On 19th March 2013, the petitioner deposited cheques
with the bank which were returned with remarks “Funds
Insufficient/Signature Differ”. On 4th April, 2013 petitioner issued
statutory notice which returned unserved with a postal remark
“intimted”. The petitioner, therefore, filed a complaint. After the

¶12

¶13

42-crwp2218-2021.doc

¶14

closure of evidence of the parties, the petitioner filed an
application for sending disputed cheque, vakalatnama and PR
Bond for getting expert opinion on the signatures which has been
rejected by the impugned order.

¶15

3.This Court on 2nd August 2022 issued notice for final disposal
stating that even if none appears for the respondent, petition shall
be disposed of finally at the stage of admission. Board remark
shows that notice of present petition has been served on
respondent no.1 neither respondent no.1 nor his advocate is
present and, therefore, the petition is disposed of on merits.

¶16

4.On perusal of the impugned order, it appears that the
learned Magistrate rejected the application only on the ground
that the evidence of the complainant has already been closed. It is
stated that since the inception of trial, the complainant was aware
about remark of “signatures differ” and, therefore, at this stage it is
not possible to send the documents for the report of handwriting
expert.

¶17

5.It needs to be noted that one Mr. Sachin Rathod was
examined by the accused who in his cross-examination admitted
that he cannot tell that the signature on the cheques in question
was signed by the accused or any other person. Based on the said
admission, the petitioner filed application. The cross-examination
was conducted on 6th August 2019 and the application was filed
on 9th September 2019.

¶18

6.It is well settled principle of law that the Magistrate, while
exercising power under section 311 of the Code of Criminal

¶19

¶20

42-crwp2218-2021.doc

¶21

Procedure, can allow to recall of witness or permit evidence which
is necessary for effective adjudication of issue involved. In the facts
of the present case, from the cross-examination of the bank’s
witness, it appears that the complainant has justifiable reasons for
filing such application.

¶22

7.The rules of procedure are to meet the ends of justice. The
substantive rights of the parties cannot be taken away by hyper-
technical approach. In the facts of the case, I am satisfied that the
report of handwriting expert is necessary for just decision in the
matter. In that view of the matter I, pass the following order :

¶23

(i) The impugned order dated 11^th February, 2022 passed by Metropolitan Magistrate, 20^th Court, Mazgaon, Mumbai in Case No. 33/SS/2017 below Exhibit 75 is quashed and set aside.

¶24

(ii)The application below Exhibit 75 in Case No. 33/SS/2017 is allowed .

¶25

8. Rule is made absolute in above terms. No costs.

¶26

(AMIT BORKAR, J.)

¶27

Vijay Pukhraj Jain v. Kishor Keshav Manjarekar and Anr.

Case brief

What is this about?

What did the court decide?

Vijay Pukhraj Jain v. Kishor Keshav Manjarekar and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mr. Sunil Kumar Jayantilal Shah vs Divisional Assistant Registrar and Ors.

Mr. Jay Kumar N. Shah vs Divisional Assistant Registrar and Ors.

Mr. Jay Kumar N. Shah vs Divisional Assistant Registrar and Ors.

Sulakshana Parshuram Vharkal Vs Parshuram Sadashiv Vharkal and Anr.

Raju Radhyesham Dadhich @ Sharma Vs Kamal Radhyesham Dadhich and Anr.

K. Vrushali Vs Vasant Sonu Mhatre and Anr.