Order 1

Order Details: Order
Pdf Text: 1 C. C. No.4527/SS/2018
ORDER BELOW EXH.35
1] This is an application filed by accused No.3
praying to send disputed cheque (Exh.18) to obtain
expert opinion in respect of comparing handwriting on
the cheque and signature on it.
2] Brief contention of application are as under :
Accused has specifically disputed that the
body of the subject cheque is filled with different ink and
signature on the subject cheque is in different ink. The
payee name, date, amount in figure and word are filled in
same ink and signature on subject cheque is in different
ink. Therefore, he prayed to sent the disputed cheque for
expert opinion. Hence, this application.
3] Complainant has filed his reply overleaf the
application. He has submitted that present application is
filed on 03/03/2022. He has next submitted that
thereafter, accused did not press said application till
today to delay the trial. He has also submitted that only
with an intention to delay the trial, such tactics are being
used by him. According to him, accused has admitted the
signature on the cheque, there is no dispute regarding
signature on disputed cheque. The complainant has
denied the suggestion that he had filled in the details of
said cheque. He has next submitted that no purpose will
be served by sending the cheque to the hand writing
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expert. Present application is pressed at fag end of the
trial. He has lastly prayed to reject the application.
4] Heard advocate for both sides. Advocate for
accused has relied upon following authorities:
i) Sharad S/o. Balasaheb Sangle V/s. Deepak s/o.
Manohar Nevse [2014 ALL MR (Cri.) 2997]
ii) Gangadhar Deoram Kadam V/s. The State of
Maharashtra [2014 ALL MR (Cri.) 206]
5] Perused the record. This is a case filed under
Section 138 of N.I. Act against a partnership firm and it’s
two partners. It is the case of complainant that he had
lent an amount of Rs.12,00,000/- as a friendly loan by
cash to accused Nos.2 and 3 and their partnership firm.
It is further contended by complainant that accused in
discharge of their legally enforceable liability towards
repayment of friendly loan of Rs.12,00,000/- issued
cheque of said amount in his favour. The cheque was
presented for encashment. However, it was returned
unpaid with reason ‘funds insufficient’. Hence,
complainant filed this complaint.
6] Complainant has led his evidence by filing his
evidence affidavit at (Exh.12). He was cross-examined by
accused No.3. Cross-examination conducted by accused
No.3 was adopted by accused Nos.1 and 2. It was
suggested to complainant in his cross-examination that
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there is difference in the ink in payee name, amount on
cheque and amount in an figure. Complainant shown
ignorance about said difference. It was also suggested to
him that accused Nos.2 and 3 did not sign the disputed
cheque. It was further suggested to him that accused had
given the disputed cheque to one Nisha Narvekar
without mentioning the payee name, date and amount in
figure. Complainant has denied the suggestion.
7] Accused No.3 has examined himself as D.W.1
at (Exh.32). He has deposed that disputed cheque was
handed over to one Nisha Narvekar as a security and the
payee name and date was not written on it. It is further
deposed by him that disputed cheque has been misused to
extract money by the complainant with hand in glow
with Nisha Narvekar.
8] It appears from the tenor of cross-
examination of C.W.1 conducted by accused persons that
they dispute their handwriting on the cheque. Matter is
pending for defence evidence. The question whether the
cheque was signed by accused persons and whether it’s
contents were filled by them is relevant in the matter.
Therefore, opinion of an expert on this aspect is
necessary in the case. It is not the contention of
complainant that accused had given only a blank signed
cheque to him. Therefore, identity of writing of cheque is
relevant. Preventing the petitioner from obtaining expert
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opinion would amount to denying him an effective and
sufficient opportunity of defending himself. The ruling
relied upon by accused are helpful to him. Considering
the stand taken by accused and law laid down by the
Hon’ble Bombay High Court, application deserves to be
allowed in the interest of justice. Therefore, I proceed to
pass the following order :
ORDER
A] Application is allowed.
B] Document i.e. cheque (Exh.18) be encircled with
pencil as Q-1.
C] Accused No.3 is directed to give his 36 specimen
signatures i.e. 6 signatures each on 6 pages. They
be encircled as specimen signature i.e. S-1 to S-36.
D] He is also directed to give three documents
containing his natural handwriting.
E] Document i.e. cheque (Exh.18), Natural hand
written document and the specimen signatures of
accused be sent to the government handwriting
expert as mentioned in the application for
obtaining his expert opinion.
F] Handwriting expert is directed to submit his
opinion whether the signature Q-1 on document at
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(Exh.18), natural hand written documents N-1 to
N-3 matches with specimen signatures and
contents of cheque.
G] Accused No.3 to deposit necessary charges for
expert opinion in concerned office and submit the
receipt.
H] Issue letter to concern handwriting expert on
depositing necessary charges.
Date : 06/11/2023
Sd/-
Shri. R.D.Dange
Metropolitan Magistrate,
63rd Court, Andheri, Mumbai.
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