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SCR.A/1777/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1777 of 2009
=========================================================
JIGNESH
RATILAL PATEL - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
JA ADESHRA for
Applicant(s) : 1,
MS CM SHAH, APP for Respondent(s) : 1,
NOTICE
SERVED BY DS for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 01/02/2010
ORAL
ORDER
The
petitioner is the original accused. He is facing cheque bouncing
complaint filed by respondent no.2 herein. During the conduct of the
trial, the petitioner moved an application to the learned Magistrate
requesting that the cheque in question be sent for handwriting
expert’s opinion. This prayer was made on the basis that according
to the petitioner, the cheque did not contain details filled by the
petitioner. In fact, it is the case of the petitioner that the
cheque though contains his signature was forcibly taken by one
Kalpeshbhai Punjabhai from whom somehow complainant obtained the
cheque and has misused it with mala fide intention. Learned
Magistrate rejected the request and criminal revision application of
the petitioner also came to be turned down. Hence the petition.
Though
served no one appears for the complaint.
Having
heard learned advocate for the petitioner and learned APP for the
State, I find that admittedly in response to the notice issued by
the complainant, the petitioner had given no reply. Theory of cheque
being misused and for which purpose handwriting expert’s opinion is
necessary shall have to be verified on the basis of prima facie
evidence produced. At this stage, the petitioner has not entered the
witness box nor has he so far examined any other witness. It is not
clear whether the petitioner has filed any complaint against
Kalpeshbhai Punjabhai, if according to the petitioner, said person
had forcibly taken the blank cheque from him.
Be
that as it may, at this stage, I see no foundation for sustaining
the request of the petitioner for sending the cheque to handwriting
expert’s opinion. In case of Madhubhai Gandabhai Patel v.
Joitaram Jividas Patel and one reported in 2005(3) GLH 535, the
Court made following observations :
9. In
view of the above, the order passed by the Ld.Magistrate and its
confirmation thereof by the Ld.Sessions Judge shall stand modified
to the effect that after proper evidence is led by the accused that
the cheques handed over to the complainant were signed as blank
cheques without there being date, name and the amount, the accused
may pray to the trial court for examination of hand writing expert
as the case may be and if such an application is made at that stage
the matter may be considered in accordance with law by the
Ld.Magistrate and at that stage the contentions of both sides shall
remain open.
It
is clarified that if there is no evidence led as observed earlier on
behalf of the accused that the cheques were handed over blank, the
option for referring the cheques to handwriting expert may not be
available to the accused.
No
case for interference is made out. However, if at a later stage, if
the petitioner leads evidence to lay foundation for request of
sending the cheque for handwriting expert’s opinion, it would be
open for the petitioner to make a fresh application which may be
decided in accordance with law.
Disposed
of accordingly.
(Akil
Kureshi,J.)
(raghu)
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