The cautious approach required in relying solely on the opinion of a handwriting expert and the direction for the trial court to set a maximum time limit for the handwriting expert to submit the report.

JUDGMENT :

S.K. Sahoo, J.

Heard Mr. Aurovinda Mohanty, learned counsel for the petitioner.

This is an application under section 401 read with section 397 of the Cr.P.C. challenging the order dated 20.07.2016 passed by the learned S.D.J.M., Kendrapara in I.C.C. Case No.454 of 2013 in which the petition filed by the opposite party-accused with a prayer to send his specimen signature to the handwriting expert for comparison with the signatures appearing on the disputed cheque and Vakalatnama and to submit a report was allowed.

2. The petitioner filed a complaint petition for commission of offence under section 138 of the Negotiable Instruments Act, 1881 (hereafter ‘N.I. Act’) against the opposite party on the ground that the opposite party issued a cheque bearing no. 0165975 of Rs.4,80,000/-(rupees four lakh and eighty thousand) in favour of the petitioner which bounced on being presented in the bank for encashment.

From the impugned order, it appears that petitioner was examined on 22.09.2014 but the opposite party did not cross examine him in spite of affording of several opportunities and accordingly, the learned Magistrate declined the cross examination and posted the case for recording of the accused statement. Subsequently, an application was filed by the opposite party for recall of the petitioner for cross examination which was allowed but again the opposite party did not avail such opportunity for several dates and then once again the learned Magistrate posted the case for recording of the accused statement. The opposite party again filed another application to recall the petitioner for cross examination which was again allowed. On 01.07.2016 a petition was filed by the opposite party under Anneuxre-1 making a prayer to send cheque no.0165975 with his specimen signature to the handwriting expert to compare it with the signatures which are appearing on the cheque as well as on the Vakalatnama and to submit a report.

The petitioner filed his objection under Annexure-2 stating therein that the petition is not maintainable in the eye of law and in spite of several opportunity being afforded to the opposite party for cross examination, he has not preferred to cross examine the petitioner and that opposite party has not set up any defence plea and therefore, by entertaining such petition, assistance cannot be provided to him by the Court. It is further indicated in the objection that the cheque in question did not bounce due to difference in signature of the drawer but due to insufficient fund only and therefore, the petition was filed just to delay the disposal of the case.

The learned S.D.J.M., Kendrapara vide impugned order dated 20.07.2016 relying upon the citations in cases of The State (Delhi Administration) -Vrs.-Pali Ram reported in AIR 1979 Supreme Court 14 and Ajit Savant Majagavi -Vrs.-State of Karnataka reported in AIR 1997 SC 3255 has been pleased to allow the petition filed by the opposite party and directed that the specimen signature of the opposite party along with the signatures appearing on the Vakalatnama as well as on the cheque and other documents be sent to the handwriting expert for comparison and directed the accused to pay Rs.500/-to the petitioner for delay in filing such petition after the stage of accused statement and further directed the opposite party to remain present in person to give his admitted signature before the Court.

4. Learned counsel for the petitioner while challenging the impugned order vehemently contended that when in spite of affording several opportunities, the opposite party did not prefer to cross examine the complainant and thereby the evidence in chief has remained unchallenged and the signature appearing on the cheque has not been disputed by the defence by way of cross examination, by allowing the petition filed by the opposite party, serious prejudice has been caused to the petitioner and it will unnecessarily delay the disposal of complaint case proceeding which is of the year