Case Note & Summary
The petitioner, Niranjan Suresh Bhatwal, was the accused in a proceeding under Section 138 of the Negotiable Instruments Act, 1881, pending before the Judicial Magistrate First Class, Court No. 3, Dhule, being STC No. 260 of 2015, filed by the respondent, Dr. Swapnil Nitin Pagare. During the trial, the petitioner filed an application (Exhibit 75) seeking to transmit three cheques (Exhibits 7, 8, and 9) to a handwriting expert to ascertain whether the contents of the cheques were in his handwriting and whether the signatures on the cheques and the other contents were in different ink. The learned Magistrate rejected this application on 24 July 2018. Aggrieved, the petitioner filed a criminal writ petition under Articles 226 and 227 of the Constitution of India before the Bombay High Court, Aurangabad Bench. The petitioner argued that in order to have a fair trial, every opportunity ought to be extended to him, and failure to do so would result in a miscarriage of justice. He contended that as an accused, he should be given an opportunity to rebut the presumptions available in favour of the complainant under Section 139 of the Negotiable Instruments Act, 1881. The respondent opposed the petition, submitting that the petitioner was bent upon protracting the trial, which had already been delayed considerably. The High Court, after hearing both sides, observed that the petitioner's request to send the cheques to a handwriting expert was a legitimate defence strategy and that the Magistrate's rejection was improper as it curtailed the petitioner's right to a fair trial. The court noted that sending the cheques to an expert would not cause any prejudice to the complainant. Accordingly, the High Court allowed the writ petition, set aside the impugned order dated 24 July 2018, and directed the Magistrate to allow the application and send the cheques to the handwriting expert as prayed. The court also directed the Magistrate to expedite the trial and complete it within six months from the date of receipt of the expert's report.
Headnote
A) Criminal Procedure - Fair Trial - Right to Defence - Section 138 Negotiable Instruments Act, 1881 - The accused in a cheque dishonour case sought to send the cheques to a handwriting expert to determine if the contents were in his handwriting and if the signatures and other contents were in different ink. The Magistrate rejected the application. The High Court held that the accused must be given a fair opportunity to rebut the presumptions under Section 139 of the Negotiable Instruments Act, 1881, and that sending the cheques to an expert would not cause any prejudice to the complainant. The impugned order was set aside and the application was allowed. (Paras 2-6) B) Evidence - Handwriting Expert - Section 45 Indian Evidence Act, 1872 - The court observed that the accused's request to send the cheques to a handwriting expert was a legitimate defence strategy to challenge the complainant's case. The Magistrate's rejection was held to be improper as it curtailed the accused's right to a fair trial. (Paras 3-6)
Issue of Consideration
Whether the Magistrate erred in rejecting the accused's application to send cheques to a handwriting expert for examination, thereby denying the accused a fair opportunity to rebut the presumptions under Section 138 of the Negotiable Instruments Act, 1881.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 24 July 2018, and directed the Magistrate to allow the application and send the cheques to the handwriting expert as prayed. The court also directed the Magistrate to expedite the trial and complete it within six months from the date of receipt of the expert's report.
Law Points
- Right to fair trial
- Opportunity to rebut presumption
- Handwriting expert examination
- Section 138 Negotiable Instruments Act
- 1881
- Section 45 Indian Evidence Act
- 1872
