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N. R. Borkar, J
Rohini Kamble – Appellant
Versus
Shilabai Bedarkar – Respondent
CRIMINAL WRIT PETITION NO.2079 OF 2019
For the Appellants/Petitioners: Tukaram M. Venjane
For the Respondents: H. V. Patil
When an accused admits the signature on a cheque and there is evidence of a financial transaction between the parties, a request to refer the cheque to a handwriting expert for ink age determination is not warranted.
Headnote:Analysis of an application under the Negotiable Instruments Act, 1881, regarding the request to refer a cheque for handwriting and ink analysis. The accused, after having her signature on the cheque admitted, sought to send the instrument to a forensic laboratory to determine the age of the ink, claiming the cheque was stolen by an employee and that no transaction existed. The court observed that the accused had admitted in cross-examination the transfer of funds from the complainant's account to her own, undermining the claim of no transaction. The primary issue was whether the trial court was justified in rejecting the application to refer the cheque to a handwriting expert when the signature was not disputed. The court reasoned that since the signatures were admitted and evidence of a financial transaction existed, the request for ink age determination was unnecessary, distinguishing this from cases where signatures are denied or specific timeline disputes are central to the defense. Accordingly, the writ petition stands dismissed.
| Table of Content |
|---|
| 1. challenge to trial court's rejection of expert opinion application in ni act case. (Para 1 , 2) |
| 2. petitioner's claim of stolen signed cheque versus respondent's evidence of fund transfer. (Para 3 , 4 , 5 , 6) |
| 3. expert opinion unnecessary if signatures are admitted and transactions are proven. (Para 7 , 8 , 9) |
| 4. dismissal of writ petition due to lack of merit in challenging the impugned order. (Para 10) |
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-79 in Summary Criminal Case No. 23 of 2013.
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-79 for referring the cheque in question to the hand writing expert. The learned trial court rejected the said application at Exhibit-79 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, for examination and opinion. 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 23rd August, 2017, in Criminal Writ Petition No. 683 of 2017, permitted the petitioner-accused to file fresh application at appropriate stage i.e. stage after the accused is called upon to enter upon his defence. It is submitted that accordingly the application at Exhibit-79 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-79 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 son of the respondent-complainant was working in the Gas Agency of the petitioner. According to the petitioner, she 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 son of the respondent took away the cheque in question and there is no transaction of whatsoever and respondent. It is submitted that the petitioner has, however, admitted in her cross-examination that on 14-07-2011, an amount of Rs.3,00,000/- was transferred in her bank account from the bank account of the respondent. It is submitted the trial Court was, therefore, justified in rejecting the application.
7. Admittedly, the petitioner has not disputed her signature on the cheque in question. The defence of the petitioner-accused is that she used to keep signed cheque, in the office of her Gas Agency. According to the petitioner, the son of the respondent, who was working in her Gas Agency took away the cheque in question. The petitioner has, however, admitted in her cross-examination
