Case Note & Summary
The petitioner, Sayaji Tukaram Shinde, was the accused in S.C.C. No. 1084/2008 pending before the Additional Chief Judicial Magistrate, Beed, for an offence under Section 138 of the Negotiable Instruments Act, 1881, on a complaint filed by respondent no.2, the Ganajan Nagri Sahkari Bank Ltd. through its officer Sachin Awsarmal. During the trial, on 08.02.2013, when the case was fixed for recording of defence evidence, the petitioner filed an application (Exhibit 68) contending that the cheque in question had not been issued by him and that the handwriting and signature on the cheque were not his. He claimed that this defence had been taken during cross-examination of the complainant, but the complainant asserted the handwriting and signature were the petitioner's. The petitioner therefore sought to send the cheque along with his specimen signature and handwriting to a forensic expert for comparison, offering to bear the expenses. The respondent no.2 opposed the application. The learned Magistrate rejected the application, prompting the petitioner to file the present criminal writ petition. The High Court, after hearing both sides, observed that the petitioner had a right to adduce defence evidence and that the application was made bona fide to prove his defence. The court noted that the Magistrate's order did not assign any valid reasons for rejection and that the application was necessary for a fair trial. Consequently, the High Court allowed the writ petition, set aside the Magistrate's order, and directed that the disputed cheque, along with the petitioner's specimen signatures and handwriting, be sent to the Government Handwriting Expert or any other approved expert for opinion, with the petitioner bearing the expenses. The court also directed the trial court to expedite the proceedings.
Headnote
A) Criminal Procedure - Negotiable Instruments Act - Section 138 - Right to Defence - Handwriting Expert - The accused in a cheque dishonour case sought to send the disputed cheque for expert opinion to prove that the signature and handwriting were not his. The Magistrate rejected the application. The High Court held that the accused has a right to adduce defence evidence and that the application was bona fide and necessary for a fair trial. The court set aside the Magistrate's order and allowed the application, directing the accused to bear the expenses. (Paras 4-7)
Issue of Consideration
Whether the accused in a complaint 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 that the cheque was not issued by him.
Final Decision
The High Court allowed the writ petition, set aside the Magistrate's order dated 08.02.2013, and directed that the disputed cheque along with the petitioner's specimen signatures and handwriting be sent to the Government Handwriting Expert or any other approved expert for opinion. The petitioner was directed to bear the expenses. The trial court was directed to expedite the proceedings.
Law Points
- Right to fair trial
- Right to defence evidence
- Handwriting expert opinion
- Section 138 Negotiable Instruments Act
- 1881
- Section 45 Indian Evidence Act
- 1872
