Case Note & Summary
The petitioner, Balasaheb Barku Kolhe, is the accused in Sessions Case No.875 of 2010 pending before the Judicial Magistrate, First Class, Nashik, for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, arising from a complaint filed by respondent no.1, Jagdish Tryambakrao Mandlik. The accused claimed that he had already repaid the amounts taken from the complainant, and therefore the cheque in question was not issued for discharge of any liability. In support of his defence, the accused tendered five debit vouchers (Exhibits 35 to 39) which he alleged bore the signatures of the complainant, indicating receipt of amounts. The complainant disputed the genuineness of these vouchers. During the defence evidence stage, the accused filed an application (Exhibit 43) seeking to send these vouchers to a handwriting expert for examination and opinion. The Magistrate rejected the application by order dated 17th April 2012, on the ground that the documents were already exhibited and the accused had not raised the issue earlier. The accused challenged this order by filing a revision application before the Sessions Court, which was dismissed. Aggrieved, the accused approached the Bombay High Court under Article 227 of the Constitution of India and its inherent powers. The High Court heard the parties and examined the petition and annexures. The court noted that the accused had a right to adduce defence evidence and that the expert opinion could assist in determining the genuineness of the documents, which was crucial for the defence. The court held that the rejection of the application was improper and that the accused should be given an opportunity to prove his defence. The High Court set aside the orders of the Magistrate and the Sessions Judge and allowed the application (Exhibit 43), directing the Magistrate to send the disputed documents to a handwriting expert for examination and opinion. 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 - Negotiable Instruments Act - Section 138 - Handwriting Expert - Application for Expert Opinion - The accused in a complaint under Section 138 of the Negotiable Instruments Act, 1881, sought to send certain debit vouchers allegedly signed by the complainant to a handwriting expert for comparison with the complainant's admitted signatures. The Magistrate rejected the application on the ground that the documents were already exhibited and the accused had not raised the issue earlier. The High Court held that the rejection was improper as the accused has a right to adduce defence evidence and the expert opinion could assist in determining the genuineness of the documents, which is crucial for the defence. The court set aside the orders of the Magistrate and the Sessions Judge and allowed the application. (Paras 5-10)
Issue of Consideration
Whether the Magistrate was justified in rejecting the accused's application to send disputed documents to a handwriting expert for examination and opinion, and whether the Sessions Judge erred in dismissing the revision against that order.
Final Decision
The High Court allowed the petition, set aside the orders of the Magistrate and the Sessions Judge, and allowed the application (Exhibit 43). The Magistrate was directed to send the disputed documents to a handwriting expert for examination and opinion. The trial was directed to be expedited and completed within six months from the date of receipt of the expert's report.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- Handwriting Expert Opinion
- Section 45 Indian Evidence Act
- 1872
- Right to Defence
- Fair Trial
