Case Note & Summary
The petitioner, Baburao Madhavrao Munnemanik, was the accused in a complaint filed by respondent No.1, Vishwajit Pratapsing Pardesh, under Section 138 of the Negotiable Instruments Act, 1881, before the Judicial Magistrate First Class, Jalna (STC No.466/2009). The petitioner appeared in response to summons, and after the complainant led evidence and closed it on 28.06.2009, the petitioner moved an application at Exhibit-46 requesting that the disputed cheques be referred to an expert for determination of the age of ink, signature, and other formatting. The petitioner alleged that the cheques were given as security and that the blank spaces were filled by the respondent to suit his case. The JMFC rejected this application on 28.06.2010. The petitioner challenged that order before the Sessions Judge, Jalna, in Criminal Revision No.86/2010, which was also dismissed on 16.09.2010. Aggrieved, the petitioner filed the present criminal writ petition under Article 227 of the Constitution of India. The legal issue was whether the courts below erred in denying the petitioner the opportunity to have the cheques examined by an expert, thereby prejudicing his defence. The petitioner argued that the expert opinion was crucial to prove that the cheques were originally blank and filled later. The respondent opposed, but the court found that the rejection was improper as it deprived the accused of a fair chance to defend. The High Court allowed the petition, set aside the impugned orders, and remanded the matter to the trial court for fresh consideration of the application, directing the trial court to decide it on its own merits after hearing both sides.
Headnote
A) Criminal Procedure - Negotiable Instruments Act - Section 138 - Expert Examination of Cheques - The accused sought to refer cheques to an expert for determination of age of ink and signature to prove that blank cheques given as security were filled later - The trial court and revisional court rejected the application - Held that the rejection was improper as it deprived the accused of a fair opportunity to defend, and the matter was remanded for fresh consideration (Paras 1-6).
Issue of Consideration
Whether the courts below erred in rejecting the accused's application for referring the disputed cheques to a handwriting expert for determination of age of ink and signature, thereby denying the accused a fair opportunity to defend himself in a complaint under Section 138 of the Negotiable Instruments Act, 1881.
Final Decision
The petition is allowed. The impugned orders dated 28.06.2010 passed by JMFC, Jalna below Exhibit-46 in STC No.466/2009 and dated 16.09.2010 passed by the Sessions Judge, Jalna in Criminal Revision No.86/2010 are set aside. The matter is remanded back to the trial court for fresh consideration of the application (Exhibit-46) on its own merits after hearing both sides. Rule is made absolute accordingly.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- Expert evidence
- Handwriting expert
- Age of ink
- Defence opportunity
- Section 45 Indian Evidence Act
- 1872
- Article 227 Constitution of India
Case Details
2011 LawText (BOM) (04) 3
Criminal Writ Petition No.984 of 2010
Mr. D.M. Shinde for petitioner, Mr. A.M. Karad for respondent No.1, Mr. N.R. Shaikh APP for respondent State
Baburao Madhavrao Munnemanik
Vishwajit Pratapsing Pardesh, The State of Maharashtra
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Nature of Litigation
Criminal writ petition under Article 227 of the Constitution of India challenging the rejection of an application for expert examination of cheques in a complaint under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
The petitioner (accused) sought to set aside the orders dated 28.06.2010 and 16.09.2010 and to allow his application for referring the cheques to an expert for determination of age of ink and signature.
Filing Reason
The petitioner alleged that the cheques were given as security and the blank places were filled by the respondent to suit his case, and expert opinion was necessary to prove this defence.
Previous Decisions
The JMFC, Jalna rejected the application (Exhibit-46) on 28.06.2010, and the Sessions Judge, Jalna dismissed Criminal Revision No.86/2010 on 16.09.2010.
Issues
Whether the courts below erred in rejecting the accused's application for expert examination of the disputed cheques.
Whether the rejection of the application deprived the accused of a fair opportunity to defend himself in the proceedings under Section 138 of the Negotiable Instruments Act, 1881.
Submissions/Arguments
The petitioner argued that the cheques were given as security and the blank spaces were filled later by the respondent, and expert opinion on the age of ink and signature was essential to prove this defence.
The respondent opposed the application, but the judgment does not detail the respondent's specific arguments.
Ratio Decidendi
The rejection of the accused's application for expert examination of the cheques was improper as it deprived the accused of a fair opportunity to defend himself. The courts below should have considered the application on its merits, and the matter was remanded for fresh consideration.
Judgment Excerpts
By this petition, under Article 227 of the Constitution of India, the petitioner/accused has challenged the order dated 20.06.2010 passed by JMFC, Jalna below Exhibit-46 in STC No. 466/2009, which is confirmed vide dated 16.09.2010 passed by learned Sessions Court in Revision Application No.86/2010.
It also appears that learned JMFC, rejected the application (Exhibit-46) vide impugned order dated 28.06.2010.
During the course of submissions, learned counsel for the petitioner placed...
Procedural History
Respondent No.1 filed complaint STC No.466/2009 under Section 138 of the Negotiable Instruments Act, 1881 against the petitioner before JMFC, Jalna. The petitioner appeared and after the complainant closed evidence, the petitioner moved application Exhibit-46 for expert examination of cheques. JMFC rejected the application on 28.06.2010. The petitioner challenged this order in Criminal Revision No.86/2010 before the Sessions Judge, Jalna, which was dismissed on 16.09.2010. The petitioner then filed the present criminal writ petition under Article 227 of the Constitution of India.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Constitution of India: 227
- Indian Evidence Act, 1872: 45
