Case Note & Summary
The applicant, Simratmal Hiralal Gandhi, was the original accused in a complaint under Section 138 of the Negotiable Instruments Act, 1881, filed by respondent no.1, Kedarnath Badrinarayan Bang. The complainant alleged that the applicant had taken a hand loan of Rs. 50,000 and issued a cheque dated 20-5-2007, which was dishonoured due to closure of account. After statutory notice, the accused failed to pay, leading to the complaint. The accused contended that the cheque was misused and contained material alterations. During trial, after the complainant's evidence was closed, the accused filed an application (Exhibit 49) on 26-10-2009 seeking to send the cheque to a handwriting expert to examine the name and date. The trial court allowed the application on 31-10-2009. The accused then filed the present application under Section 482 CrPC to quash that order. The High Court noted that the accused had not cross-examined the complainant on any alleged material alteration or forgery, nor had he raised the issue earlier. The application was filed belatedly after the complainant's evidence was closed. The Court held that without a foundation laid in cross-examination, the application was an abuse of process and liable to be quashed. The order of the trial court was set aside, and the trial court was directed to proceed with the trial expeditiously.
Headnote
A) Criminal Procedure - Quashing of Order - Section 482 CrPC - Order for Handwriting Expert - The High Court quashed the trial court's order allowing the accused's application to send a cheque to a handwriting expert, as the accused had not cross-examined the complainant on the alleged material alterations or forgery, and the application was filed belatedly after the complainant's evidence was closed. Held that without a foundation laid in cross-examination, such an application is an abuse of process (Paras 7-10).
Issue of Consideration
Whether the trial court was justified in allowing the application for sending the cheque to a handwriting expert when the accused had not suggested any material alteration or forgery during cross-examination of the complainant.
Final Decision
The High Court allowed the application, quashed the order dated 31-10-2009 passed by the trial court on Exhibit 49, and directed the trial court to proceed with the trial expeditiously.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- Section 45 Indian Evidence Act
- 1872
- Handwriting Expert
- Material Alteration
- Cross-Examination Foundation
Case Details
2011 LawText (BOM) (08) 33
Criminal Application No. 24 of 2010
Mr. V.S. Bedre for applicant, Mr. L.B. Pallod for respondent no.1, Mr. V.S. Badakh for respondent no.3
Simratmal s/o. Hiralal Gandhi
Kedarnath s/o. Badrinarayan Bang, Hiralal Simratmal & Company, Ramlabai Subhash Gandhi, Rajendra s/o. Simratmal Gandhi
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Criminal application under Section 482 CrPC to quash trial court order allowing sending of cheque to handwriting expert in a complaint under Section 138 NI Act.
Remedy Sought
Applicant (original accused) sought quashing of order dated 31-10-2009 passed by the 6th Joint Civil Judge (Senior Division) & Judicial Magistrate (F.C.), Ahmednagar, on Exhibit 49 in Summary Trial Case No. 5064/2007.
Filing Reason
The trial court allowed the accused's application to send the cheque to a handwriting expert despite no foundation laid in cross-examination and belated filing.
Previous Decisions
The trial court allowed Exhibit 49 on 31-10-2009, which the applicant sought to quash.
Issues
Whether the trial court was justified in allowing the application for sending the cheque to a handwriting expert when the accused had not suggested any material alteration or forgery during cross-examination of the complainant.
Submissions/Arguments
Applicant argued that the cheque was misused and contained material alterations, and sought expert opinion.
Respondent no.1 opposed, stating no suggestion was made in cross-examination regarding alterations.
Ratio Decidendi
An application for sending a document to a handwriting expert under Section 45 of the Indian Evidence Act, 1872, cannot be allowed unless the party has laid a foundation during cross-examination by suggesting material alteration or forgery. Without such foundation, the application is an abuse of process and liable to be quashed under Section 482 CrPC.
Judgment Excerpts
It is pertinent to note that the applicant/accused has not suggested anything to the complainant in the cross examination about the material alteration in the cheque or about the handwriting of the complainant on the cheque.
Hence, the application preferred by the applicant/accused for sending the cheque to the handwriting expert appears to be an abuse of process of law.
Procedural History
The complainant filed a complaint under Section 138 NI Act against the accused. During trial, after the complainant's evidence was closed, the accused filed an application (Exhibit 49) on 26-10-2009 seeking to send the cheque to a handwriting expert. The trial court allowed the application on 31-10-2009. The accused then filed Criminal Application No. 24 of 2010 under Section 482 CrPC before the High Court to quash that order.
Acts & Sections
- Code of Criminal Procedure, 1973: 482
- Negotiable Instruments Act, 1881: 138
- Indian Evidence Act, 1872: 45
