Case Note & Summary
The petitioner, Sharad Sangle, is the accused in S.T.C. No. 584/2011 pending before the Judicial Magistrate (First Class), Kopargaon, for an offence under Section 138 of the Negotiable Instruments Act, 1881. The respondent no.1, Deepak Newse, is the complainant. During the trial, after the complainant filed his affidavit of evidence, the accused made an application (Exhibit 29) before the Magistrate contending that the handwriting and signature on the cheque were not his and seeking to send the cheque to a handwriting expert for opinion. The Magistrate rejected this application by order dated 10th May 2013, reasoning that Section 20 of the Negotiable Instruments Act authorizes the payee or holder in due course to complete an incomplete negotiable instrument. Aggrieved, the accused filed the present criminal writ petition. The High Court observed that the accused had taken a specific contention that the handwriting and signature were not his, which is relevant to the prosecution. The Magistrate's reasoning was based on an assumption that the complainant had received a blank signed cheque, which was not the complainant's case. The Court held that the identity of handwriting on the cheque is relevant, and the accused cannot be prevented from seeking expert opinion. The Court set aside the Magistrate's order and directed that the cheque be sent to the Government Handwriting Expert for opinion. The petition was allowed.
Headnote
A) Criminal Procedure - Handwriting Expert - Section 45 Indian Evidence Act, 1872 - Accused's Right to Defence - The accused in a prosecution under Section 138 of the Negotiable Instruments Act, 1881, specifically contended that the handwriting and signature on the cheque were not his. The Magistrate rejected the application to send the cheque to an expert on the ground that Section 20 of the NI Act authorizes the payee to complete an incomplete instrument. Held: The Magistrate's reasoning was based on an assumption not pleaded by the complainant. The identity of handwriting on the cheque is relevant, and the accused cannot be prevented from adducing expert opinion evidence. The order rejecting the application was set aside. (Paras 4-7)
B) Negotiable Instruments Act - Section 138 - Relevance of Handwriting - The question of who wrote the contents of the cheque is relevant in a prosecution under Section 138, unless the complainant admits that the accused gave a blank signed cheque. In the absence of such admission, the accused is entitled to seek expert opinion on the handwriting. (Para 6)
Issue of Consideration
Whether the Magistrate was justified in rejecting the accused's application to send the cheque to a handwriting expert for opinion on the handwriting and signature, when the accused specifically denied the handwriting and signature as his own.
Final Decision
The petition is allowed. The order dated 10th May 2013 passed by the Judicial Magistrate (First Class), Kopargaon, rejecting the application (Exhibit 29) is set aside. The Magistrate is directed to send the cheque in question to the Government Handwriting Expert for opinion. Rule is made absolute accordingly.
Law Points
- Right of accused to seek expert opinion on handwriting and signature
- Relevance of handwriting on cheque in Section 138 NI Act proceedings
- Magistrate cannot reject application based on assumptions not pleaded
Case Details
2014 LawText (BOM) (01) 5
Criminal Writ Petition No. 550 of 2013
Mr. S.B. Kadu for petitioner, Mr. A.P. Bhandari for respondent no.1, Mr. P.N. Muley, Additional Public Prosecutor for respondent no.2
Sharad s/o. Balasaheb Sangle
Deepak s/o. Manohar Newse, The State of Maharashtra
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Nature of Litigation
Criminal writ petition challenging the Magistrate's order rejecting the accused's application to send the cheque to a handwriting expert in a prosecution under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
The petitioner (accused) sought to set aside the Magistrate's order dated 10th May 2013 and to direct that the cheque be sent to a handwriting expert for opinion.
Filing Reason
The Magistrate rejected the accused's application (Exhibit 29) to send the cheque to a handwriting expert, on the ground that Section 20 of the NI Act authorizes the payee to complete an incomplete instrument.
Previous Decisions
The Judicial Magistrate (First Class), Kopargaon, by order dated 10th May 2013, rejected the accused's application (Exhibit 29) to send the cheque to a handwriting expert.
Issues
Whether the Magistrate was justified in rejecting the accused's application to send the cheque to a handwriting expert for opinion on the handwriting and signature, when the accused specifically denied the handwriting and signature as his own.
Submissions/Arguments
Petitioner (accused): The handwriting and signature on the cheque are not his, and it is necessary to send the cheque to an expert for opinion. The Magistrate's order is based on an assumption not pleaded by the complainant.
Respondent no.1 (complainant): It is not necessary to seek opinion on handwriting; once the signature is decided, the handwriting is immaterial.
Ratio Decidendi
In a prosecution under Section 138 of the Negotiable Instruments Act, 1881, when the accused specifically denies that the handwriting and signature on the cheque are his, the identity of handwriting on the cheque is relevant. The accused cannot be prevented from adducing expert opinion evidence under Section 45 of the Indian Evidence Act, 1872. The Magistrate cannot reject such an application based on an assumption that the complainant received a blank signed cheque, especially when such a case is not pleaded by the complainant.
Judgment Excerpts
Whether the cheque has been signed by him, would obviously be relevant in the prosecution of the petitioner. Therefore, the opinion of an expert on this aspect cannot be prevented from being given in evidence.
As to who has written the matter on the cheque, also would be relevant, depending on the facts of the case.
These observations appear to be based on imagination, as it does not appear to be the case of the respondent no.1, 'that an incomplete negotiable instrument was given to him which was completed by him'.
Procedural History
The petitioner is the accused in S.T.C. No. 584/2011 pending before the Judicial Magistrate (First Class), Kopargaon, for an offence under Section 138 of the Negotiable Instruments Act, 1881. After the complainant filed his affidavit of evidence, the accused made an application (Exhibit 29) to send the cheque to a handwriting expert. The Magistrate rejected the application on 10th May 2013. The accused then filed the present criminal writ petition before the High Court.
Acts & Sections
- Negotiable Instruments Act, 1881: 138, 20
- Indian Evidence Act, 1872: 45
