Monday, 18 July 2016

At which stage magistrate can permit accused to send cheque to handwriting expert for ascertaining age of ink?

After the petitioner was examined, he made an application (Exhibit 59),
praying that the cheque in question be sent to the handwriting expert and
also to an expert for asserting age of the ink.
The accused contended that the cheque had been given to the
complainant - Society as and by way of security, as the petitioner had
stood as guarantor for the loan taken by one Arjun Bhagat from the Bank.
According to the petitioner, it was a blank signed cheque and that there
was bound to be difference between the age of the ink of the signature and

the ink in which the other matter was written. This application was
opposed to by the complainant stating the accused had not disputed the
signature on the cheque, that he had given the cheque to the complainant.
has also not been disputed, and that, therefore, for ascertaining the
handwriting with respect to the remaining matter on the cheque, it was not
necessary to send the cheque for any opinion as to the other writing on the
cheque.
The Magistrate by his order dated 17-10-2013, rejected the said
application primarily holding that since the accused had admitted his
signature over disputed cheque, he had given an authority to the
complainant to pay the debt and, therefore, no purpose would be served by
sending the disputed cheque to the handwriting expert.
Being aggrieved thereby, the accused has approached this Court by
filing the present petition invoking the inherent powers of this Court.
 I have heard the learned respective Counsel for the parties.
With the assistance of the learned Counsel for the parties, I have gone
through the petition and the annexures thereto.
 A perusal of the order passed by the Magistrate, inter alia,
indicates that the possibility of the other writing on the cheque to be not of
the accused, was clear to the mind of the Magistrate himself. He was,
however, of the view that, that aspect was immaterial. Whether that aspect
would be immaterial or not, would depend on facts of each case.

 I find that in his examination under Section 313 of the Code,
the accused has stated that he would examine himself on oath as a defence
witness. The same statement is made by his Counsel before this Court.
According to the accused, he stood as a guarantor for one Arjun Bhagat
and on the date of filing of the complaint, the Bank had issued a 'no dues'
certificate to the said debtor Arjun Bhagat.
 These contentions cannot be examined in the present petition.
However, it would be open for the accused to adduce evidence to that
effect. After adducing the evidence, the accused should be permitted to
apply afresh for sending the cheque to the handwriting expert and the
expert for determination of the age of the ink, provided the relevancy of
sending the cheque to such expert would be obvious in view of the stand
and defence taken by the accused.
Since the accused can legitimately put forth his contentions and seek
appropriate relief afresh from the Magistrate, after leading defence
evidence, interference in the matter, at this stage, is not necessary.
However, the learned Magistrate shall proceed further with the case
expeditiously and in accordance with law.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
 AURANGABAD BENCH, AT AURANGABAD.

 Criminal Writ Petition No. 1016 of 2013

Ankush s/o. Gopinath Ghogare,

 versus
 The State of Maharashtra.

 CORAM : ABHAY M. THIPSAY, J.
 DATE : 30TH JANUARY 2014
Citation:2016 ALLMR(CRI)2642

1. Heard Mr. C.V. Dharurkar, the learned Counsel for the
petitioner. Heard Mr. P.P. More, the learned Additional Public Prosecutor
for the respondent no.1. Heard Mr. S.J. Salunke, the learned Counsel for
the respondent no.2.
2. Rule. By consent, Rule made returnable forthwith. The
learned Counsel for the respondent no.2 waives service. By consent,
heard finally.
3. The petitioner is the accused in S.C.C. No. 328/2007, pending
before the Judicial Magistrate (First Class), Beed. The said case is in
respect of offence punishable under Section 138 of the Negotiable
Instruments Act, 1881. The respondent no.2 herein, a Cooperative Bank,
is the complainant in the said case. The trial is in progress. The evidence
of the complainant has been adduced. The petitioner (hereinafter referred
to as "the accused") has been examined under the provisions of Section
313 of the Code of Criminal Procedure, 1973 [For short, "the Code"].
After the petitioner was examined, he made an application (Exhibit 59),
praying that the cheque in question be sent to the handwriting expert and
also to an expert for asserting age of the ink.
The accused contended that the cheque had been given to the
complainant - Society as and by way of security, as the petitioner had
stood as guarantor for the loan taken by one Arjun Bhagat from the Bank.
According to the petitioner, it was a blank signed cheque and that there
was bound to be difference between the age of the ink of the signature and

the ink in which the other matter was written. This application was
opposed to by the complainant stating the accused had not disputed the
signature on the cheque, that he had given the cheque to the complainant.
has also not been disputed, and that, therefore, for ascertaining the
handwriting with respect to the remaining matter on the cheque, it was not
necessary to send the cheque for any opinion as to the other writing on the
cheque.
The Magistrate by his order dated 17-10-2013, rejected the said
application primarily holding that since the accused had admitted his
signature over disputed cheque, he had given an authority to the
complainant to pay the debt and, therefore, no purpose would be served by
sending the disputed cheque to the handwriting expert.
Being aggrieved thereby, the accused has approached this Court by
filing the present petition invoking the inherent powers of this Court.
4. I have heard the learned respective Counsel for the parties.
With the assistance of the learned Counsel for the parties, I have gone
through the petition and the annexures thereto.
5. A perusal of the order passed by the Magistrate, inter alia,
indicates that the possibility of the other writing on the cheque to be not of
the accused, was clear to the mind of the Magistrate himself. He was,
however, of the view that, that aspect was immaterial. Whether that aspect
would be immaterial or not, would depend on facts of each case.

6. I find that in his examination under Section 313 of the Code,
the accused has stated that he would examine himself on oath as a defence
witness. The same statement is made by his Counsel before this Court.
According to the accused, he stood as a guarantor for one Arjun Bhagat
and on the date of filing of the complaint, the Bank had issued a 'no dues'
certificate to the said debtor Arjun Bhagat.
7. These contentions cannot be examined in the present petition.
However, it would be open for the accused to adduce evidence to that
effect. After adducing the evidence, the accused should be permitted to
apply afresh for sending the cheque to the handwriting expert and the
expert for determination of the age of the ink, provided the relevancy of
sending the cheque to such expert would be obvious in view of the stand
and defence taken by the accused.
Since the accused can legitimately put forth his contentions and seek
appropriate relief afresh from the Magistrate, after leading defence
evidence, interference in the matter, at this stage, is not necessary.
However, the learned Magistrate shall proceed further with the case
expeditiously and in accordance with law.
8. The petition is disposed of in the aforesaid terms. Rule is
made absolute accordingly.

 ( ABHAY M. THIPSAY )
 JUDGE

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