Case Note & Summary
The petitioner, Dada Ghanshyam Pathak, was the original accused in STCC No.1489/2006 filed by respondent No.2, Minabai Kishor Patil, under Section 138 of the Negotiable Instruments Act, 1881. The complainant alleged that the accused had taken a loan of Rs.3,50,000 and issued a cheque dated 22.11.2005 for repayment, which was dishonoured due to insufficient funds. During the trial, after the complainant closed her evidence, the accused filed an application (Exh.53) seeking to send the disputed cheque to the C.I.D. Crime Branch, Pune for handwriting expert opinion. The trial court rejected this application on 11.2.2009, and the revisional court dismissed the criminal revision application No.70/2009 on 31.10.2009. The accused then filed the present writ petition under Article 227 of the Constitution of India. The High Court considered the submissions of both sides. The petitioner argued that the cheque was not signed by him and that expert opinion was necessary to prove his defence. The respondent opposed, stating that the application was filed belatedly and that the accused had admitted the signature in cross-examination. The High Court held that the accused has a right to defend himself and that the trial court should have allowed the application to ensure a fair trial. The court noted that the accused had not admitted the signature and that the application was made before the accused's statement under Section 313 CrPC. The court allowed the petition, quashed the impugned orders, and directed the trial court to send the cheque to the Government Handwriting Expert for opinion, with the accused bearing the expenses.
Headnote
A) Criminal Procedure - Right to Defence - Handwriting Expert Opinion - Section 138 Negotiable Instruments Act, 1881, Section 45 Indian Evidence Act, 1872 - The accused sought to send the disputed cheque to a handwriting expert to prove that the signature was not his. The trial court and revisional court rejected the application. The High Court held that the accused has a right to defend himself and produce evidence, including expert opinion, to rebut the presumption under Section 139 of the NI Act. The court allowed the petition and directed the trial court to send the cheque to the Government Handwriting Expert for opinion. (Paras 1-10)
Issue of Consideration
Whether the accused in a cheque dishonour case under Section 138 of the Negotiable Instruments Act, 1881 is entitled to have the disputed cheque examined by a handwriting expert to prove his defence.
Final Decision
The High Court allowed the petition, quashed the impugned orders dated 11.2.2009 and 31.10.2009, and directed the trial court to send the disputed cheque to the Government Handwriting Expert for opinion. The accused was directed to bear the expenses of the expert.
Law Points
- Right to fair trial
- Right to defence
- Handwriting expert opinion
- Section 138 Negotiable Instruments Act
- 1881
- Section 45 Indian Evidence Act
- 1872
Case Details
2010 LawText (BOM) (07) 9
Criminal Writ Petition No.1146 of 2009
Shri R.V. Gore for petitioner, Mrs. B. R. Khekale APP for respondent No.1, Mr. A.S. Sawant for respondent No.2
The State of Maharashtra and Smt. Minabai Kishor Patil
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Nature of Litigation
Criminal writ petition under Article 227 of Constitution of India challenging orders rejecting application for handwriting expert opinion in a cheque dishonour case under Section 138 of Negotiable Instruments Act, 1881.
Remedy Sought
Petitioner (original accused) sought quashing of order dated 11.2.2009 passed by JMFC, Dhule rejecting application Exh.53 and judgment dated 31.10.2009 passed by Additional Sessions Judge, Dhule dismissing Criminal Revision Application No.70/2009, and direction to send disputed cheque to handwriting expert.
Filing Reason
The petitioner/accused wanted to send the disputed cheque to a handwriting expert to prove that the signature on the cheque was not his, to rebut the presumption under Section 139 of the NI Act.
Previous Decisions
The trial court (5th Judicial Magistrate First Class, Dhule) rejected the application Exh.53 on 11.2.2009. The revisional court (Additional Sessions Judge, Dhule) dismissed Criminal Revision Application No.70/2009 on 31.10.2009.
Issues
Whether the accused in a cheque dishonour case under Section 138 of the Negotiable Instruments Act, 1881 is entitled to have the disputed cheque examined by a handwriting expert to prove his defence.
Submissions/Arguments
Petitioner argued that the cheque was not signed by him and that expert opinion was necessary to prove his defence; the application was made before his statement under Section 313 CrPC.
Respondent argued that the application was filed belatedly after the complainant's evidence was closed, and that the accused had admitted the signature in cross-examination.
Ratio Decidendi
The accused has a right to defend himself and produce evidence, including expert opinion, to rebut the presumption under Section 139 of the Negotiable Instruments Act, 1881. The trial court should have allowed the application for sending the cheque to a handwriting expert to ensure a fair trial, especially when the accused had not admitted the signature and the application was made before his statement under Section 313 CrPC.
Judgment Excerpts
The petitioner is the original accused and respondent No.2 is the original complainant, who filed STCC No.1489/2006 against the present petitioner wherein she alleged that she had given loan of Rs.3,50,000/ to the petitioner/accused and in discharge of the said liability, and towards repayment of the said loan, petitioner had issued a cheque No.378659 dated 22.11.2005 to the respondent No.2.
Considering rival contentions, learned 5th Judicial Magistrate First Class, Dhule rejected said application by passing order on 11.2.2009 (Exh B page 14).
Being aggrieved and dissatisfied by the said order petitioner/accused preferred criminal revision application No.70/2009 before learned Sessions Judge, Dhule challenging the correctness and legality of the said order under section 397 of the Code of Criminal Procedure.
Procedural History
The complainant filed STCC No.1489/2006 under Section 138 of the Negotiable Instruments Act, 1881. After the complainant closed her evidence, the accused filed application Exh.53 on 20.09.2008 seeking to send the disputed cheque to a handwriting expert. The trial court rejected the application on 11.2.2009. The accused filed Criminal Revision Application No.70/2009, which was dismissed by the Additional Sessions Judge, Dhule on 31.10.2009. The accused then filed the present Criminal Writ Petition No.1146 of 2009 under Article 227 of the Constitution of India.
Acts & Sections
- Negotiable Instruments Act, 1881: 138, 139
- Indian Evidence Act, 1872: 45
- Code of Criminal Procedure, 1973: 397
- Constitution of India: 227
