2024:BHC-AUG:5875 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

915 CRIMINAL WRIT PETITION NO. 1869 OF 2023 Sagar Venkatesh Diwan Age : 56 years, Occ : Service, R/o Tup Bazar, Opp. Satyanarayan Printing Press, Nandurbar, Tq. & Dist. Nandurbar ..PETITIONER -VERSUS-

Gautam Buddha Birhade Age : 53 years, Occ : Private Writer, R/o Patonda, Tq. & Dist. Nandurbar.

..RESPONDENT ...

Advocate for the Petitioner : Mr. Syed G. R.

Advocate for Respondent : Mr. Tungar Hrishikesh V.

…..

CORAM : SANJAY A. DESHMUKH, J.

DATED : 7th MARCH, 2024.

JUDGMENT :-

1. The petitioner has challenged the order passed by the learned Judicial Magistrate, First Class, Nandurabar in S.T.C.C. No.528 of 2013 at Exhibit-60 dated 30.01.2018 and at Exhibit-113 dated 27.11.2023.

2. The respondent has filed criminal proceeding under section 138 of the Negotiable Instruments Act bearing S.T.C.C. No.528 of 2013 against this petitioner, which is pending before the learned Judicial Magistrate, First Class, Nandurbar.

3. The grounds of objections of this petition are that the earlier application at Exhibit-60 was moved by the petitioner for sending the disputed cheque to handwriting/signature expert as he has disputed his signature over it. While rejecting the application, it was held by the trial Court that the petitioner failed to cross-examine the complainant/ respondent and reply to the statutory notice was not given. It was lastly held that the accused failed to show sufficient grounds for referring disputed cheque to the handwriting expert. The trial Court lastly rejected the application by holding that the application appears to be filed at premature stage.

4. Thereafter, no cross examination order was set aside and the petitioner was allowed to cross-examine the complainant. Thereafter, the application at Exhibit-113 was moved for sending disputed cheque to the handwriting/signature expert for opinion. The learned trial Court after considering say filed by the respondent held that earlier application at Exhibit-60 was filed. It was rejected. That order was not challenged. Therefore, the application for the same relief is not maintainable and the application was rejected.

5. The learned advocate for the petitioner submitted that the reasons given by the trial Court are not legal and correct. Even the trial Court has not gone through the reasons given by predecessor in title while passing the order at Exhibit-60. The trial Court did not take cognizance of the fact that no cross order was passed which was set aside and the complainant/respondent was cross-examined. In view of the reasons in the order at Exhibit-60, the trial Court ought to have allowed the application taking cognizance of the subsequent events.

6. The learned advocate for the petitioner is relying upon the law laid down by Bombay High Court in the case of Saheb Khan Noor Khan Pathan Vs. State of Maharashtra and another, in Criminal Application No.2667 of 2006, dated 10.10.2006. The para no.4 of the said judgment reads as under :-

“4. It appears that in the reply notice itself the present applicant had disputed that he had issued any cheque to the Respondent No.2. He denied his signature even during the evidence and in fact, he examined the Bank Manager as a defence witness to prove that the signature of the disputed cheque was not his signature. However, Bank Manager admitted that the disputed signature appears to be similar to the specimen signature. The learned Magistrate came to the conclusion that the Bank Manager is also an expert in comparison of signatures and therefore, his evidence is acceptable and it is not necessary to refer the document to the handwriting expert. Even though the Bank Manager is by training and practice experienced to compare the signatures, still he cannot be called as handwriting expert with necessary expertise. In the present matter huge amount of Rs.70,000/- is involved. The applicant appears to be small shop keeper. Taking into consideration the stake, I find that