High Court
Legal Reasoning
1869.2023WP-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD915 CRIMINAL WRIT PETITION NO. 1869 OF 2023Sagar Venkatesh Diwan Age : 56 years, Occ : Service, R/o Tup Bazar, Opp. Satyanarayan Printing Press, Nandurbar, Tq. & Dist. Nandurbar ..PETITIONER -VERSUS-Gautam Buddha Birhade Age : 53 years, Occ : Private Writer, R/o Patonda, Tq. & Dist. Nandurbar. ..RESPONDENT ...Advocate for the Petitioner : Mr. Syed G. R.Advocate for Respondent : Mr. Tungar Hrishikesh V. ….. CORAM : SANJAY A. DESHMUKH, J. DATED : 7th MARCH, 2024. JUDGMENT :- 1. The petitioner has challenged the order passed by thelearned Judicial Magistrate, First Class, Nandurabar in S.T.C.C.No.528 of 2013 at Exhibit-60 dated 30.01.2018 and at Exhibit-113dated 27.11.2023. 2.The respondent has filed criminal proceeding under section138 of the Negotiable Instruments Act bearing S.T.C.C. No.528 of2013 against this petitioner, which is pending before the learned 1869.2023WP-2- Judicial Magistrate, First Class, Nandurbar.3.The grounds of objections of this petition are that the earlierapplication at Exhibit-60 was moved by the petitioner for sending thedisputed cheque to handwriting/signature expert as he has disputedhis signature over it. While rejecting the application, it was held by thetrial Court that the petitioner failed to cross-examine the complainant/respondent and reply to the statutory notice was not given. It waslastly held that the accused failed to show sufficient grounds forreferring disputed cheque to the handwriting expert. The trial Courtlastly rejected the application by holding that the application appearsto be filed at premature stage.4.Thereafter, no cross examination order was set aside andthe petitioner was allowed to cross-examine the complainant.Thereafter, the application at Exhibit-113 was moved for sendingdisputed cheque to the handwriting/signature expert for opinion. Thelearned trial Court after considering say filed by the respondent heldthat earlier application at Exhibit-60 was filed. It was rejected. Thatorder was not challenged. Therefore, the application for the samerelief is not maintainable and the application was rejected.5.The learned advocate for the petitioner submitted that thereasons given by the trial Court are not legal and correct. Even thetrial Court has not gone through the reasons given by predecessor intitle while passing the order at Exhibit-60. The trial Court did not take 1869.2023WP-3- cognizance of the fact that no cross order was passed which was setaside and the complainant/respondent was cross-examined. In viewof the reasons in the order at Exhibit-60, the trial Court ought to haveallowed the application taking cognizance of the subsequent events.6.The learned advocate for the petitioner is relying upon thelaw laid down by Bombay High Court in the case of Saheb KhanNoor Khan Pathan Vs. State of Maharashtra and another, inCriminal Application No.2667 of 2006, dated 10.10.2006. Thepara no.4 of the said judgment reads as under :-“4.It appears that in the reply notice itself the presentapplicant had disputed that he had issued any cheque to theRespondent No.2. He denied his signature even during theevidence and in fact, he examined the Bank Manager as adefence witness to prove that the signature of the disputedcheque was not his signature. However, Bank Manager admittedthat the disputed signature appears to be similar to the specimensignature. The learned Magistrate came to the conclusion thatthe Bank Manager is also an expert in comparison of signaturesand therefore, his evidence is acceptable and it is not necessaryto refer the document to the handwriting expert. Even thoughthe Bank Manager is by training and practice experienced tocompare the signatures, still he cannot be called as handwritingexpert with necessary expertise. In the present matter hugeamount of Rs.70,000/- is involved. The applicant appears to besmall shop keeper. Taking into consideration the stake, I find thatit will be in the interest of justice to allow the application and torefer the document to handwriting expert. Mr. Shinde learnedcounsel for Respondent No.2 relied upon Inderchand S/oLakhichand Khivsar v. Gokul S/o Pitamber Patil and 1869.2023WP-4- another, 2006(5) Maharashtra Law Journal 61 : (2006(6) AIRBom R 1051) in support of his contention that the disputeddocument cannot be referred to handwriting expert. The saidauthority is not applicable to the present case. In that case therewas no dispute about the signature at any stage and only at latestage to protract the litigation, the application was made to referthe document to the expert. In the present case the genuinenessof the signature on the document was disputed since beginning,in fact even before filing of the complaint itself and that is why atthe stage Respondent No.2 himself wanted the disputeddocument to be referred to handwriting expert. The matter is notvery old. The complaint is filed in September 2004 only. Thenecessary application was moved by the applicant on 15-09-2005 i.e. within few days after the Respondent No.2 had notpressed his own application dated 18-7-2005. Therefore, itcan not be said that the attempt is being made to protract thelitigation.”7. In the case of T. Nagappa Vs. Y.R. Muralidharreported in 2008(6) Mh.L.J. 515, the Hon’ble Supreme Court has laiddown the law as under :- “7. When a contention has been raised that the complainant hasmisused the cheque, even in a case where a presumption canbe raised under Section 118(a) or 139 of the said Act, anopportunity must be granted to the accused for adducingevidence in rebuttal thereof. As the law places the burden on theaccused, he must be given an opportunity to discharge it. 8.The learned advocate for the petitioner lastly prayed to setaside the impugned orders and direct to the trial Court to send the 1869.2023WP-5- cheque for ascertaining truthfulness of signature of the petitioner overit to the handwriting expert.9.The learned advocate for the respondent submitted thatwhen earlier order was passed and it was not challenged, therefore,subsequent application for the same relief cannot be filed. He furthersubmitted that notice reply was also not given and in the cross-examination also handwriting and signature is not denied. Theapplication is, therefore, liable to be rejected. The FIR was not lodgedabout the alleged theft of disputed cheque of this petitioner, therefore,there is no substance in the Writ Petition and contentions raised bythe petitioner in this regard. He is relying upon the authority in thecase of L.C. Goyal Vs. Suresh Joshi reported in LAWS (SC) 19993 5. Para 5 of the said judgment reads as under :- 5.…………. The circumstances established in the presentcase speak for themselves and candidly point out towards themisconduct committed by the appellant. When the establishedcircumstantial evidence is so patent that it leads to only oneconclusion that the signature on Ext. C-4 was not forged; therewas no need for an opinion of a hand writing expert. We are,therefore, satisfied that the established circumstantial evidenceas well as the documentary evidence in the present case showthat the allegations of the complainant were well substantiatedand in such circumstances of the case, the Bar Council of Indiawas justified in declining to summon a hand-writing expert forfinding out the genuineness of the signature on Ext. C-4.”10.The learned advocate for the respondent is also relying upon the 1869.2023WP-6- law laid down in the case of Sunil Bhanudas Birle Vs. Usman NoorkhanPathan reported in LAWS (BOM) 2011 3 230. Para 5 of the saidjudgment reads as under :- “5. ….. In my view the application moved by the respondentNo.1 is nothing but an abuse of process of law and an attemptto protract the trial. It was expected that this defence shouldhave been taken by respondent-accused at the time, the legalnotice was served on him and then he could have establishedthe said defence by way of cross examination of thecomplainant or by leading defence evidence. In absence of anysuch defence, taken in reply to the notice, now respondent No.1cannot take this stand.” 11.The learned advocate for the respondent is relying upon the lawlaid down in the case of Mohammad Hussain Vs. Chemax Tanners Pvt.Ltd., reported in LAWS (MAD) 2015 7 205 and more specifically in parano.7, which reads as under :- “7. …. The address in the passport would have clearly indicatedit. Even that basic step has not been done in this case.Therefore, the first presumption is statutory notice is dulyserved. When the statutory notice has been served, it is theduty cast on him to give reply putting forth his defence. The non– reply in this case which would be very fatal one.” 12.Nobody will dispute the ratio and guidelines laid down inthe above cited precental law by both sides. It is well settled that thefacts of each case are decisive.13.In the case in hand, it is admitted that the earlier application 1869.2023WP-7- at Exhibit-60 was rejected and that order was not challenged.However, while passing an order below Exhibit-113, the learned trialCourt ought to have read last few lines of para 6 of the order passedat Exhibit-60 that the petitioner failed to cross-examine thecomplainant, and therefore, the application was rejected. Now cross-examination is permitted and it is conducted. This is change incircumstance. Further it was held that “considering the stage of thecase, I found no reason to refer the disputed cheque as theapplication filed by accused appears to be at the premature stage.”These two reasons are not considered by the trial Court whilepassing order below Exhibit-113.14.The jurisprudence of writing of judgment and order is thatthe relevant and justifiable reasons are mandatory and must begiven. Further it is part of judicial discipline that the Court succeedingto the earlier Court has to follow and consider the order passed bythe earlier Court in the same proceeding. Thus, the trial Court did notconsider that earlier application was held to be filed at prematurestage. The petitioner took care of filing of the application at theearliest which was rejected. It means it was not necessary for thepetitioner to proceed further against the said order by filing WritPetition against it. He can wait for proper and legal stage. Thus theimpugned order is not legal and correct. It deserves to be set aside. Itis necessary to direct the trial Court to decide an application at
Decision
1869.2023WP-8- Exhibit-113 afresh, in view of the earlier and subsequent eventshappened after passing of the order below Exhibit-60 and also itwould be proper to direct the trial Court to proceed to pass the freshorder below Exhibit-113.15.For the reasons discussed above and in the different factsituation, the precedential laws cited supra on behalf of respondent isnot helpful to him. Therefore, it is not relied upon.16.The Writ Petition deserves to be partly allowed in respect ofimpugned order passed by the trial Court below Exhibit-113 dated27.11.2023. It is allowed. The impugned order is quashed and setaside. The trial Court is directed to decide the application atExhibit-113 afresh by giving reasons as discussed in this judgmentand more specifically by considering reasons in last para 6 of anorder passed at Exhibit-60 in the said proceedings.17.Writ Petition is disposed of accordingly. (SANJAY A. DESHMUKH, J.) sga