Case Note & Summary
The petitioner, Sagar Venkatesh Diwan, challenged two orders passed by the Judicial Magistrate, First Class, Nandurbar, in S.T.C.C. No. 528 of 2013, a proceeding under Section 138 of the Negotiable Instruments Act, 1881, filed by the respondent, Gautam Buddha Birhade. The first impugned order (Exhibit-60, dated 30.01.2018) rejected the petitioner's application to send the disputed cheque to a handwriting/signature expert, on the grounds that the petitioner had not cross-examined the complainant, had not replied to the statutory notice, and the application was premature. The second impugned order (Exhibit-113, dated 27.11.2023) rejected a subsequent application for the same relief, holding that since the earlier order was not challenged, the second application was not maintainable. The petitioner argued that after the first rejection, the cross-examination order was set aside and the complainant was cross-examined, constituting a change in circumstances. The High Court, relying on the principle that rejection of an earlier application as premature does not bar a subsequent application after the defect is cured, and citing Saheb Khan Noor Khan Pathan v. State of Maharashtra, held that the trial court erred in dismissing the second application. The court set aside both impugned orders and directed the trial court to allow the application at Exhibit-113 and send the disputed cheque to the handwriting expert for opinion, emphasizing the accused's right to a fair defense.
Headnote
A) Criminal Procedure - Negotiable Instruments Act - Section 138 - Handwriting Expert - Rejection of earlier application as premature does not bar subsequent application after cross-examination - The trial court rejected the first application because the accused had not cross-examined the complainant and the application was premature. After cross-examination, the accused filed a second application. The trial court dismissed it as not maintainable due to the earlier rejection. The High Court held that the earlier rejection was not on merits but on procedural grounds, and the subsequent change in circumstances (cross-examination having been completed) justified a fresh consideration. The court set aside the impugned orders and directed the trial court to allow the application and send the cheque to the handwriting expert. (Paras 1-7)
B) Evidence Act - Handwriting Expert - Bank Manager not an expert - The court relied on Saheb Khan Noor Khan Pathan v. State of Maharashtra, where it was held that a bank manager, though experienced in comparing signatures, cannot be treated as a handwriting expert. The court emphasized that in the interest of justice, especially where a substantial amount is involved, the document should be sent to a handwriting expert for opinion. (Para 6)
Issue of Consideration
Whether the rejection of an earlier application for sending a disputed cheque to a handwriting expert on the ground that it was premature and that the accused had not cross-examined the complainant bars a subsequent application for the same relief after the accused has cross-examined the complainant.
Final Decision
The High Court allowed the writ petition, set aside the orders dated 30.01.2018 and 27.11.2023, and directed the trial court to allow the application at Exhibit-113 and send the disputed cheque to the handwriting/signature expert for opinion.
Law Points
- Res judicata does not apply to interlocutory applications in criminal proceedings
- change in circumstances allows fresh application
- rejection of earlier application as premature does not bar subsequent application after cross-examination
- accused entitled to fair opportunity to defend including expert evidence
Case Details
2024 LawText (BOM) (03) 21
Criminal Writ Petition No. 1869 of 2023
Mr. Syed G. R. for Petitioner, Mr. Tungar Hrishikesh V. for Respondent
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Nature of Litigation
Criminal writ petition challenging orders rejecting applications to send disputed cheque to handwriting expert in a proceeding under Section 138 of the Negotiable Instruments Act.
Remedy Sought
Petitioner sought to set aside the orders dated 30.01.2018 and 27.11.2023 and to direct the trial court to send the disputed cheque to a handwriting/signature expert.
Filing Reason
The trial court rejected the petitioner's application for expert opinion on the ground that the earlier application was rejected and not challenged, and the second application was not maintainable.
Previous Decisions
The trial court rejected the first application (Exhibit-60) on 30.01.2018 as premature and for lack of cross-examination. The second application (Exhibit-113) was rejected on 27.11.2023 as not maintainable due to the earlier rejection.
Issues
Whether the rejection of an earlier application for sending a disputed cheque to a handwriting expert on the ground that it was premature and that the accused had not cross-examined the complainant bars a subsequent application for the same relief after the accused has cross-examined the complainant.
Submissions/Arguments
Petitioner argued that the reasons given by the trial court for rejecting the second application were not legal and correct, and that the trial court failed to consider the change in circumstances, i.e., the cross-examination of the complainant after the first rejection.
Petitioner relied on Saheb Khan Noor Khan Pathan v. State of Maharashtra, where it was held that a bank manager cannot be treated as a handwriting expert and that in the interest of justice, the document should be sent to an expert.
Ratio Decidendi
Rejection of an earlier application for expert opinion on procedural grounds (premature stage, lack of cross-examination) does not bar a subsequent application after the procedural defect is cured (cross-examination completed). The accused is entitled to a fair opportunity to defend, including the right to seek expert opinion on disputed signatures, especially when the earlier rejection was not on merits.
Judgment Excerpts
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.
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 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 it will be in the interest of justice to allow the application and to refer the document to handwriting expert.
Procedural History
The respondent filed a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881, being S.T.C.C. No. 528 of 2013, against the petitioner. The petitioner filed an application (Exhibit-60) to send the disputed cheque to a handwriting expert, which was rejected on 30.01.2018. Subsequently, the cross-examination order was set aside and the complainant was cross-examined. The petitioner then filed another application (Exhibit-113) for the same relief, which was rejected on 27.11.2023 on the ground that the earlier order was not challenged. The petitioner challenged both orders by way of this criminal writ petition.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
