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Petitioner has filed this petition under Section 482 of Cr.P.C., 1973

(hereinafter referred to as “the Code”) against the order dated 13.07.2016

passed in S.T.No. 24/2013 (Kuman Vs. Kamal and ano.) whereby the

learned Ist Addl. Sessions Judge, Burhanpur has allowed application of

the accused/respondent No.2 dated 16.07.2015 and has ordered that

examination-in-chief of handwriting expert Ulhas Athle dated 16.07.2015

and document Ex.P/30 and P/31 and C.D. Article A-1 being inadmissible

in evidence, cannot be read in evidence.

2.

Learned counsel for the petitioner has submitted that

petitioner/complainant filed a complaint before C.J.M. Burhanpur for

commission of offence punishable under Sections 420/34, 465,467,468

and 471 of IPC and section 138 of Negotiable Instrument Act alleging

that accused/respondent No.2 Kamal had borrowed Rs.5,00,000/- (five

lacs) from the petitioner/complainant on 05.06.2010 and had issued two

cheques of different dates in his favour. It is alleged that when

complainant presented those cheques in his bank for encashment, same

were returned to him with an endorsement “No sufficient amount and

signature is different”. It was further alleged that both the cheques issued

by accused Kamal were of his wife’s bank account but accused Kamal by

putting his signature on the cheques had issued in favour of the

petitioner/complainant. When the cheque stood bounced on the ground

of “No sufficient amount and signature is different”,

the

petitioner/complainant filed a complaint on 07.06.2011 before C.J.M.

Burhanpur. The learned C.J.M. recorded the statement of witnesses

produced by the complainant under section 200 and 202 of Cr.P.C. He

also produced hand writing expert’s report alongwith opinion that the

cheques bears the signature of Kamal Bhartiya and not of Nirupama

Bhartiya. The learned C.J.M. considering the statements on oath of the

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complainant and witnesses found that offences under sections 420/34,

465,467,468 and 471 of IPC are prima facie made out. He took the

cognizance and ordered to summon the accused. As the case was resultof

the enquiry under section 202 Cr.P.C and were triable by the Court of

Session, he committed it to the court of Sessions.

3.

The learned Addl. Sessions Judge framed the charges against the

accused/respondent No.2. He pleaded not guilty and claimed to be tried.

4.

Evidence of prosecution witnesses was recorded. Alongwith

complaint, complainant had filed, Shri Ulhas Athale, handwriting expert

report dated 02.07.2012 showing that the cheques issued were signed by

accused/ respondent No.2 and his signatures was identical as mentioned

in the reply of the statutory notice. After recording of examination-in-

chief of the prosecution witnesses Ulhas Athale, handwriting expert.

Respondent No.2/accused filed an application before learned Addl.

Sessions Judge praying for rejection of the examination–in-chief of

handwriting expert Ulhas Athale and report document Ex.P/30 and P/31

and C.D. Article A-1. The learned trial court by the impugned order

allowed application of the accused on the ground that handwriting expert

Mr. Ulhas Athale’s statement under section 202 Cr.P.C was not recorded

before the Magistrate. Therefore, before Session Court, he cannot appear

as prosecution witness and his evidence is inadmissible. Consequently, it

was directed that the evidence of handwriting expert Ulhas Athale and

report document Ex.P/30 and P/31 and C.D. Article A-1 being

inadmissible cannot be taken into consideration. Being aggrieved by the

aforesaid order, the complainant Kuman Shah has approached this court

for setting aside the impugned order.

5.

Learned counsel for the applicant has submitted that learned Addl.

Sessions Judge has committed error in allowing the application filed by

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respondent No.2 and holding that handwriting expert’s evidence is

inadmissible. It is submitted that learned Addl. Sessions Judge has not

taken into consid