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2011(2) Bankmann 374 (Bom.)
BOMBAY HIGH COURT
Bhatia J.H., J.
Ashish C. Shah —Petitioner
versus
Sheth Developers Pvt. Ltd.
and Ors. —Respondents
Criminal Writ Petition No. 40 of 2011
Decided on 16.3.2011
(ii) Indian Evidence Act , 1872—Section 47—Opinion as to handwriting—When Court has to form an opinion as to person by whom any document was written or signed, opinion of any person acquainted with handwriting of person by whom it is supposed to be written or signed, that it was or was not written or signed by that person, is a relevant fact—Two letters were received in office of complainant in course of business and in respect of transaction which had taken place between complainant and accused—Original letters purporting to have been signed by and received from accused could be admitted in evidence. (Para 11)
(C) Indian Evidence Act , 1872—Section 47—Opinion as to handwriting—Accused cannot be called in witness box even as defence witness unless he makes written request for the same—Even in statement under Section 313 Cr.P.C. wherein incriminating circumstance are required to be put to accused to enable him to explain the same, accused is not bound to answer those questions, though Court may draw adverse inference against him if he keeps quiet—In such circumstances, to suggest that document written by and signed by accused could not be proved without examining accused as witness of prosecution is against settled position of law. (Para 12)
(iv) Indian Evidence Act , 1872—Sections 47, 73 and 105—Proof of contents of document—Mere proof of handwriting of a document would not be tantamount to proof of all contents or facts stated in document—If truth of facts stated in a document is in issue, same would have to be proved admissible evidence—Letters purport to have been signed and sent by accused persons can be admitted in evidence—About truth and otherwise if doubt arises, it can be proved independently. (Para 14)
Bhatia J.H., J.—Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties.
2. To state in brief, the respondent No.1 before this Court is the original complainant and the present petitioner is the original accused No.1 in Criminal Case No. 1171/SS/2009. Respondent No.3 is the original accused No.2 and wife of the present petitioner. According to the complainant, the accused persons had represented to the complainant that they would acquire land to the extent of 1000 acres at Village Nandgaon and it could be developed jointly by the complainant and accused persons. Accused persons agreed to give inspection of the title deeds on the lands acquired till then subject to advance payment of Rs. 25 crore by the complainant. Accordingly, the complainant issued a cheque of Rs. 25 crore in the name of the accused No.1 on 25.2.2008. That cheque was encashed and credited to the account of the accused persons. For certain reasons, the parties could not proceed ahead with the development and the accused persons assured to repay amount of Rs. 25 crore with interest thereon. Accordingly, a cheque dated 7.1.2009 for the amount of Rs.25 crore drawn on the joint account of both the accused with the Indian Overseas Bank, Wadala Branch was issued in favour of the complainant. The cheque was actually signed by the accused No. 1 petitioner. However, the accused persons requested the complainant not to present the cheque for encashment till 30.1.2009 due to financial difficulties, but they assured to pay interest on the said amount. By letter dated 6.2.2009, the accused persons admitted the liability to pay the amount of Rs.25 crore and also agreed to pay interest at the rate of 18% per annum on the said amount. The cheque was deposited by the complainant with its Banker IDBI, Cuffe Parade Branch on 5.2.2009 and the said Bank presented it to the Indian Overseas Bank for encashment. However, on 6.2.2009, the cheque was returned with the marks “insufficient funds”. The intimation of the same was given by IDBI to the complainant on 7.2.2009. On 18.2.2009, the complainant issued a notice to the accused persons demanding the payment of the cheque amount. The notice was received by the accused persons on 20.2.2009 and they also replied to the same by letter dated 6.3.2009 through Advocate Prashant Chande denying the liability. Therefore, the complaint was filed under Section 138 of the Negotiable Instruments Act against both the accused.
3. After issuance of the process, the accused persons appeared before the trial Court. On 19.11.2009, Sharad Nathuram Doshi, Executive Assistant to the Chairman-cum-Managing Director of the complainant company and the constituted attorney of the complainant filed affidavit in lieu of examination-in-chief alongwith a list of documents. On the same day, the learned Magistrate directed to admit and exhibit those documents in evidence. That order as well as issuance of process were challenged by both the accused persons by filing two separate writ petitions. By the order dated 24.9.2010, this Court rejected the prayer to quash the issuance of process, but finding that the proper procedure was not followed in admitting and exhibiting the documents in evidence, direction was given to the trial Court to hear the parties and to pass appropriate order accordance with law. As per the said direction, the learned Magistrate heard the parties and passed the impugned order dated 6.12.2010 rejecting the objections raised as per Ex. 28 by the accused persons to exhibit the documents produced alongwith the complaint and evidence by the applicant. The learned Magistrate held that all the documents as already exhibited could be read in evidence. However, the accused are given liberty to bring the facts in respect of each and every document to challenge the probative value of the same. That order is sought to be quashed by filing this petition by the original accused No.1.
4. In fact, the order admitting certai
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