Case Note & Summary
The petitioner, Kamlakar Vithalrao Padwal, was the accused in a complaint under Section 138 of the Negotiable Instruments Act, 1881, pending before the Judicial Magistrate First Class, Aurangabad. The complaint was filed by the respondent no.2, Swaraj Plasto Industries, represented by its proprietor Ramesh Himmatrao Kawade. During the trial, after the complainant filed an affidavit in lieu of examination-in-chief, the accused made an application seeking to send the cheque in question and a receipt dated 26.3.2013 to a handwriting expert for examination and opinion, as he disputed the handwriting and signature on both documents. The learned Magistrate partly allowed the application, permitting the receipt to be sent to the expert but rejecting the prayer regarding the cheque. Aggrieved by this rejection, the accused filed the present criminal writ petition. The High Court considered the submissions of the parties. The court noted that the accused had a right to lead evidence in defence and that sending the cheque to a handwriting expert would not cause any prejudice to the complainant. The court observed that the Magistrate's order rejecting the prayer for the cheque was not justified. Consequently, the High Court allowed the petition, set aside the impugned order to the extent it rejected the prayer for sending the cheque to the handwriting expert, and directed the Magistrate to allow the application in its entirety. The court clarified that the expert's opinion would be considered at the trial and that the complainant would have an opportunity to rebut it.
Headnote
A) Criminal Procedure - Negotiable Instruments Act - Section 138 - Right of Accused to Lead Defence Evidence - The accused in a cheque dishonour case disputed the handwriting and signature on the cheque and sought to send it to a handwriting expert. The Magistrate allowed the application only for a receipt but not for the cheque. The High Court held that the accused has a right to lead evidence in defence and that sending the cheque to an expert would not cause any prejudice to the complainant. The order rejecting the prayer for the cheque was set aside. (Paras 1-6) B) Evidence Act - Handwriting Expert - Section 45 - Disputed Signature - The accused contended that the cheque was not written or signed by him. The court observed that the opinion of a handwriting expert is relevant under Section 45 of the Indian Evidence Act, 1872, and that the accused should be permitted to avail such expert opinion to support his defence. (Paras 4-6)
Issue of Consideration
Whether the Magistrate was justified in rejecting the accused's application to send the cheque in question to a handwriting expert for examination and opinion, when the accused disputed the handwriting and signature on the cheque.
Final Decision
The High Court allowed the petition, set aside the impugned order to the extent it rejected the prayer for sending the cheque to the handwriting expert, and directed the Magistrate to allow the application in its entirety. The expert's opinion will be considered at the trial, and the complainant will have an opportunity to rebut it.
Law Points
- Right of accused to lead evidence
- Handwriting expert opinion
- Section 138 Negotiable Instruments Act
- 1881
- Section 45 Indian Evidence Act
- 1872
- Fair trial
