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955-CrWP-2080-19.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.2080 OF 2019

Uttamkumar s/o. Ramchandra Kamble,

Age 51 years, Occu. Service as Professor

R/o. Degloor Mahavidyalaya, Taluka Degloor,

District Nanded.

..

Petitioner

(Original Accused)

Versus

Satish s/o. Babulal Bedarkar,

Age 36 years, Occu. Business,

R/o. Mukhed, Taluka Mukhed,

District Nanded.

..

Respondent

(Original Complainant)

...

Advocate for Petitioner : Mr. Tukaram M. Venjane

Advocate for Respondent-sole : Mr. H. V. Patil

...

CORAM :

N. R. BORKAR, J.

DATE : 13-10-2021

PER COURT :-

This petition takes an exception to the order dated

15-11-2019 passed by the learned Judicial Magistrate, First Class,

Mukhed, below application Exhibit-93 in Summary Criminal Case

No. 33 of 2013.

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2.

The petitioner, who is an accused in a complaint case

filed by the respondent for the offence punishable under Section

138 of the Negotiable Instruments Act, 1881, filed an application

at Exhibit-93 for referring the cheque in question to the hand-

writing expert. The learned trial court rejected the said application

at Exhibit-93 by the order impugned.

3.

I have heard learned counsel for the petitioner and the

learned counsel for the respondent.

4.

The learned counsel for the petitioner-accused submits

that initially the application filed by the petitioner to refer the

cheque in question to handwriting expert was allowed and the

cheque in question was referred to the State Examiner of

Documents, CID Maharashtra State, Aurangabad, to determine the

age of the ink and writing. It is submitted that the cheque was,

however, returned back by the State CID on the ground that they

do not have technology to determine the age of ink. It is

submitted that thereafter another application was filed to send the

cheque to the Central Forensic Laboratory, Kolkatta. The said

application was rejected and therefore a petition was filed before

this court. It is submitted that this court, by order dated 23^rd

August, 2017, in Criminal Writ Petition No. 682 of 2017, permitted

the petitioner-accused to file fresh application at appropriate stage

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i.e. stage after the accused is called upon to enter upon his

defense. It is submitted that accordingly the application at

Exhibit-93 was filed. It is submitted that the learned trial court,

however, rejected the said application by taking erroneous view of

the matter. It is submitted that considering the facts and

circumstances, the order impugned needs to be set-aside and

application at Exhibit-93 needs to be allowed.

5.

In support of the submissions, learned counsel for

petitioner-accused has referred and relied upon the decisions of

the Apex Court in the case of – (i) T. Nagappa Versus Y. R.

Muralidhar, reported in (2008) 5 Supreme Court Cases 633 and

(ii) Kalyani Baskar (Mrs.) Versus M.S. Sampoornam (Mrs.)

reported in (2007) 2 Supreme Court Cases 258.

6.

On the other hand, learned counsel for respondent

submits that the petitioner has not disputed the signature on the

cheque in question. It is submitted that only defence of the

petitioner is that the respondent-complainant was working in the

Gas Agency of the wife of the petitioner. According to the

petitioner, he used to keep signed cheque in the office of Gas

Agency to avoid any emergent financial difficulties. It is submitted

that according to the petitioner, the respondent took away the

cheques in question and there is no transaction between them of

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whatsoever nature.

7.

Admittedly, the petitioner has not disputed his

signature on the cheque in question. The defence of the

petitioner-accused is that he used to keep signed cheque in the

office of Gas Agency of his wife and the petitioner-accused took

away the said cheque. Similar