Case Note & Summary
The applicant, Simratmal s/o Hiralal Gandhi, original accused no.2 in Summary Trial Case No. 5065/2007, filed a criminal application under Section 482 of the Code of Criminal Procedure, 1973, seeking to quash the order dated 31st October 2009 passed by the learned 6th Joint Civil Judge (Senior Division) & Judicial Magistrate (F.C.), Ahmednagar, on Exhibit 48. The dispute arose from a cheque dishonour case under Section 138 of the Negotiable Instruments Act, 1881. The complainant, Kedarnath s/o Badrinarayan Bang (respondent no.1), 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 complainant filed the complaint. The applicant contended that the cheque was misused and contained material alterations, and filed an application (Exhibit 48) on 26-10-2009 requesting the court to send the cheque to a handwriting expert for comparison of the name and date. The complainant opposed the application. The trial court allowed the application, leading to the present petition. The High Court examined the record and found that the applicant had not cross-examined the complainant on the alleged material alteration, nor had he raised any suggestion in cross-examination. The application was filed after the complainant's evidence was closed and the matter was at the stage of defence evidence. The court held that without laying a foundation in cross-examination, the application for expert opinion was not maintainable. The court also noted that the applicant had not examined himself or any other witness to support the allegation. Relying on the principle that expert evidence is not conclusive and that the accused must first challenge the document in cross-examination, the High Court quashed the trial court's order. The application was allowed, and the order on Exhibit 48 was set aside.
Headnote
A) Criminal Procedure - Quashing of Order - Section 482 CrPC - Order allowing handwriting expert report quashed - The accused failed to cross-examine the complainant on the alleged material alteration in the cheque, and the application was filed belatedly after the complainant's evidence was closed - Held that the trial court's order was erroneous and liable to be set aside (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 laid any foundation in cross-examination regarding the alleged material alteration.
Final Decision
The application is allowed. The order dated 31st October 2009 passed by the learned 6th Joint Civil Judge (Senior Division) & Judicial Magistrate (F.C.), Ahmednagar, on Exhibit 48 in Summary Trial Case No. 5065/2007, is quashed and set aside. Rule is made absolute accordingly.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- Section 45 Indian Evidence Act
- 1872
- Handwriting Expert
- Material Alteration
- Cross-Examination Foundation
- Delay in Application
