Shivtirth Dudh Dairy through Mr Phokane Shivaji Eknath Vs the Nashik Merchant Co. Op Bank Ltd. Nashik through Mr Pisal Santosh Vasantraoand Anr.

¶1

17-wp-753-23

¶2

1 of 8

¶3

Gokhale

¶4

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

¶5

CRIMINAL WRIT PETITION NO. 753 OF 2023

¶6

Shivtirth Dudh Dairy Through
Mr. Phokane Shivaji Eknath

¶7

..Petitioner

¶8

Versus

¶9

The Nashik Merchant Co-Op. Bank Ltd.
and another.

¶10

..Respondents

¶11

Mr. Vedchetan Patil a/w. Sunayana Kashid a/w. Vishwa G. Patil for
Petitioner.

¶12

Ms. Sushma Satpute a/w. Shakuntala Shetty i/b. Satpute and
Shetty Associates for Respondent No.1.

¶13

Ms. Sangita D. Shinde, APP for State/Respondent.

¶14

CORAM : SARANG V. KOTWAL, J.
DATE : 4DECEMBER 2023

¶15

PC :

¶16

1.Heard Mr. Vedchetan Patil, learned counsel for the

¶17

Petitioner, Ms. Sushma Satpute, learned counsel for the

¶18

Respondent No.1 and Ms. Sangita Shinde, learned APP for the
State.

¶19

VINOD BHASKAR GOKHALE

¶20

2.The Petitioner has challenged the order dated

¶21

Digitally signed by VINOD BHASKAR GOKHALE Date: 2023.12.05 13:39:47 +0530

¶22

2 of 817-wp-753-23

¶23

31.01.2023 passed below Exhibit-49 in S.C.C.No.9929 of 2019 by
the 7th J.M.F.C., Nashik. By the impugned order, the learned
Magistrate rejected the application at Exhibit-49 praying for
sending the cheque, which is the subject matter of the trial which
is at Exhibit-34, for comparison with the admitted signature of the
petitioner, for examination by an expert in examining the hand
writing.

¶24

3.The petitioner is the original accused in that case. The
complaint was filed by the Respondent No.1 herein. It is the case
of the complainant that the Respondent No.1 had sanctioned and
paid loan of Rs.6,75,00,000/- to the petitioner on 18.07.2016 after
taking security of his property. There was default in making the
payment including the interest. Therefore, the petitioner gave a
cheque, signed by him as the Proprietor of Shivtirth Milk Dairy,
dated 21.10.2019 drawn on the Respondent No.1’s bank, Satpur
branch, for the amount of Rs.6,78,34,144/-. The cheque was
dishonoured. After completing the formalities the complaint was
filed. The learned Magistrate issued process U/s.138 of the
Negotiable Instruments Act vide the order dated 17.01.2020.

¶25

3 of 817-wp-753-23

¶26

Thereafter the trial proceeded and the complainant’s witness CW-1
Dhongde was examined. He filed his affidavit in lieu of
examination in chief. He was cross-examined by the petitioner. The
complainant-Respondent No.1 examined only one witness.
Thereafter the petitioner’s statement U/s.313 of the Cr.P.C. was
recorded. After that the application at Exhibit-49 as referred to
herein above was preferred; which was rejected.

¶27

4.Learned counsel for the petitioner invited my attention
to page 36 of this petition memo which is a photocopy of the loan
application form bearing the signature of the petitioner. He
submitted that, a copy of the cheque is at page-66. The signatures
on these two documents are so different that even without hand
writing expert’s opinion it can be seen that the cheque is not
signed by the petitioner. He submitted that, there was no delay on
his part to file the application and that, it was the right stage after
recording of the statement U/s.313 of the Cr.p.c. when the
petitioner could have made this application for sending the
documents for opinion of an expert. He submitted that, in the
interest of justice, the opportunity cannot be denied to the

¶28

4 of 817-wp-753-23

¶29

petitioner to establish his innocence and rebut the allegations
against him. He submitted that the examination in chief was
followed by the cross-examination which was concluded on
07.10.2022. In the cross-examination, the petitioner has laid the
foundation of his defence that the signature on the cheque was not
his signature. Even in the statement U/s.313 of the Cr.P.C. which
was recorded on 18.10.2022, he had taken the same defence and,
therefore, there is no delay in preferring the application on
07.11.2022. He submitted that the petitioner has no intention to
delay the matter.

¶30

5.Learned counsel for the Respondent No.1 submitted that
the complaint is pending since the year 2019. The petitioner has
not denied his signature on the cheque till conducting the cross-
examination. He had an option of responding to the statutory
notice even before registration of the complaint, taking up defence
of forgery of the signature; but this defence is taken for the first
time at the time of conducing the cross-examination in the year
2022. This shows that the petitioner is only interested in
prolonging the matter and there is no substance in his contention.

¶31

5 of 817-wp-753-23

¶32

She further submitted that the learned Magistrate has given
sufficient reasons for rejecting the petitioner’s application. The
learned Magistrate has observed that the petitioner had not replied
to the notice and had not shown any reason or intention on the
part of the respondent No.1-complainant to forge the signature of
the petitioner; when he had admitted the loan transaction itself.

¶33

6.I have considered these submissions. While it is true that
the petitioner has not immediately taken the defence of forgery of
his signature by replying to the statutory notice; at the same time,
it cannot be ignored that, at the stage of cross-examination of the
complainant’s witness, he had specifically taken this defence and
had suggested to the complainant’s witness that the original
cheque was in possession of the bank-respondent No.1. Forged
signatures of the petitioner’s were put on the cheque. The same
defence was repeated in the statement recorded U/s.313 of the
Cr.p.c. where it was mentioned that, he had not issued any such
cheque. The cross-examination was over on 07.10.2022 and the
statement U/s.313 of the Cr.p.c. was recorded on 18.10.2022.
Thereafter the application at Exhibit-49 was made on 07.11.2022.

¶34

6 of 817-wp-753-23

¶35

Thus, after the trial started, it does not appear that the petitioner
had deliberately prolonged the trial and that he had made this
application much belatedly. The amount of the cheque is huge. The
petitioner has taken a specific defence that, it is not his signature
on the cheque. The same suggestion was given to the
complainant’s witness. Therefore, in the interest of justice, no
prejudice would be caused to the Respondent No.1 if the cheque
and the admitted signature of the petitioner is sent for comparison
by the hand writing expert. At the same time, it cannot be ignored
that the complaint is pending since 2019 and the petitioner had
not specifically replied to the statutory notice mentioning that the
signature on the cheque was not his signature. Therefore, some
reasonable cost can be imposed on him which can be made
payable to the Respondent No.1. At the same time, some
instructions will have to be given to get the hand writing expert’s
opinion as expeditiously as possible. Both learned counsel
submitted that the signature of the petitioner appearing on the
loan application form is not disputed by either of the parties. The
statement is recorded and accepted.

¶36

7 of 817-wp-753-23

¶37

7.Hence, the following order:

¶38

O R D E R

¶39

i)The impugned order dated 31.01.2023 passed
below Exhibit-49 in S.C.C.No.9929 of 2019
passed by the 7th J.M.F.C., Nashik, is set aside.

¶40

ii)The learned Magistrate shall send the relevant
documents viz. Loan application form, the
cheque, the loan agreement and the specimen
hand writing of the petitioner which can be
obtained by the Trial Court, to the Government
Examiner of hand writing, CID, Pune,
Maharashtra State.

¶41

iii)The concerned authority shall prepare its report and send it to the Trial Court at the earliest.

¶42

iv)After the report is received by the Trial Court, the trial shall proceed from that point onwards.

¶43

v) The petitioner shall pay cost of Rs.25,000/- to the Respondent No.1 within a period of one month from today.

¶44

vi)The petitioner shall also deposit cost for examination of the documents in the Trial Court within a period of four weeks from today.

¶45

17-wp-753-23

¶46

8 of 8

¶47

vii)With these observations, the petition is allowed
to that extent and is disposed of.

¶48

(SARANG V. KOTWAL, J.)

Shivtirth Dudh Dairy through Mr Phokane Shivaji Eknath v. the Nashik Merchant Co. Op Bank Ltd. Nashik through Mr Pisal Santosh Vasantraoand Anr.

Case brief

What is this about?

What did the court decide?

Shivtirth Dudh Dairy through Mr Phokane Shivaji Eknath v. the Nashik Merchant Co. Op Bank Ltd. Nashik through Mr Pisal Santosh Vasantraoand Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Noor Mohammad Shaikh Vs State of Maharashtra and Ors.

Eknath Maruti Gavand Vs State of Maharashtra and Anr.

Jubin Shah Vs the State of Maharashtra and Anr.

Antim Bhagwandas Totla Vs State of Maharashtra

Antim Bhagwandas Totla Vs the State of Maharashtra

Manik Rambhau Dindore Vs Sunanda Pandit Jawale and Anr.