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SCR.A/833/2010 2/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 833 of
2010
=========================================================
RAJESHKUMAR
MANILAL MANKODIA - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
MURALI N DEVNANI for
Applicant(s) : 1,
MR MAULIK G NANAVATI ASST. PUBLIC PROSECUTOR for
Respondent(s) : 1,
MR HARDIK A DAVE for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 25/08/2010
ORAL
ORDER
RULE.
Mr. Maulik G. Nanavati, learned APP, waives service of notice of
rule on behalf of respondent No.1-State and Mr. Hardik A. Dave,
learned Advocate, waives for respondent No.2.
1. Petitioner is the
original accused, who is facing a complaint for dishonour of cheque,
under Section 138 of the Negotiable Instruments Act. In the said
proceedings, he had filed an application for sending the disputed
cheque for handwriting expert’s opinion. However, the said request
was turned down by the learned Magistrate, on the ground that the
stage for calling the opinion of handwriting expert has not yet come.
Later on, at the stage of recording of his statement under Section
313 of the Criminal Procedure Code, he filed a fresh application
Exhibit-62 and revised his request. In the said application it is
stated inter alia that, the account from which the cheque was
alleged to be issued, was closed down in the year 2001. The booklet,
which contained the disputed cheque, was issued in the year 1998. It
is, therefore, apparent that he would not have issued such a cheque
in the year 2004, when the said cheque is alleged to have been given.
After 1998, other cheque books have been issued. He, therefore,
prayed that to verify the details filled up in the said cheque, i.e.
the age of the signature and handwritings in the cheque and also to
verify whether the signature and the handwritings are of same person
or not, it is necessary to send the disputed cheque for handwriting
expert’s opinion.
2. This application was
turned down by the learned Magistrate by order dated 22.02.2010,
inter alia on the ground that when the accused has admitted
his signature on the cheque, it is not necessary to call for the
expert’s report, regarding other details. His revision application
was also dismissed by the learned Additional District Judge, by order
dated 26.04.2010. He has, therefore, approached this Court, in the
present petition.
3. I have heard learned
Counsel for the petitioner. He submitted that the Courts below have
committed serious error in rejecting the application of the
petitioner. He contended that, since several disputes were raised
regarding the disputed cheque, it was very essential that the same be
send for handwriting expert’s opinion.
4. He relied on a
decision of the Apex Court in the case of T. Nagappa Vs.
Y.R. Muralidhar reported in AIR 2008 SC 2010, in support
of the petition.
5. On the other hand,
learned Counsel for the complainant opposed the petition, supported
the decision of the Courts below and contended that the petitioner
had not led any evidence for the prayer made in the application
Exhibit-62. He relied on a decision of the learned Single Judge of
this Court in the case of Madhubhai Gandabhai Patel VS.
Joitaram Jividas Patel and Another reported in 2005 (3)
GLH 535.
6. He also drew my
attention to the reply filed by the petitioner to the notice under
Section 138 of the Negotiable Instruments Act, issued by the
complainant.
7. I have also heard
learned APP for respondent No.1-State.
8. Though, it is true
that the petitioner has admitted his signature on the disputed
cheque, he has been disputing other aspects related to the drawing of
the cheque. For example, he contended that the contents of the cheque
are not written by him. He also, in the application Exhibit-62,
stated that the account itself was closed in the year 2001, the
cheque book was issued in the year 1998, and therefore, the disputed
cheque could not have been issued in the year 2004.
9. Without, further,
elaborating on this aspect of the matter, so as not to prejudice the
complainant or the petitioner during the pendency of the trial, in my
opinion the request of the petitioner to send the disputed cheque for
handwriting expert’s opinion, ought to have been accepted, more
particularly, when the petitioner requested that the age of the
signature itself be verified. His admission of his signature on the
disputed cheque, therefore, was not the sole consideration, on which
his request should have been turned down.
10. In the case of T.
Nagappa (Supra), the Apex Court has held and observed as
under:
7. When a
contention has been raised that the complainant has misused the
cheque, even in a case where a presumption can be raised under
Section 118(a) or 139 of the said Act, an opportunity must be granted
to the accused for adducing evidence in rebuttal thereof. As the law
places the burden on the accused, he must be given an opportunity to
discharge it.
11. In the result, the
petition is allowed. The impugned order dated 22.02.2010, passed by
the Judicial Magistrate First Class(Additional Senior Civil Judge),
Viramgam, below application Exhibit-62 in Criminal Case No. 1067 of
2004 and the order dated 26.04.2010, passed by the learned Additional
District Judge, F.T.C. No.2, Ahmedabad(Rural) at Viramgam, below
application Exhibit-7 in Criminal Revision Application No.2 of 2010,
are QUASHED. Application, EXHIBIT-62, is
ALLOWED. Learned MAGISTRATE shall take
the CONSEQUENTIAL steps. The report from FSL may be
called expeditiously. Rule is made absolute.
(AKIL
KURESHI, J.)
Umesh/
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