BHARATBHAI OKHAJI PADHIER Vs. JYOTSANABEN PURSHOTTAMDAS PATEL

JUDGEMENT

(1.) Present Special Criminal Application under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (herein after referred to as "CrPC") has been preferred by the petitioner herein - original accused to quash and set aside the impugned common order dated 19.01.2009 passed by the learned Metropolitan Magistrate (NI Act), Court No.4, Ahmedabad passed below Exhs.18 and 19 in Criminal Case No.1088/2008 (old case No.4314/2007).

(2.) Respondent No.2 herein - original complainant had instituted the private complaint being Criminal Case No.1088/2008 (old case No.4314/2007) against the petitioner herein - original accused in the Court of learned Metropolitan Magistrate (NI Act), Court No.4, Ahmedabad for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act"). That in the said criminal case, after completion of the prosecution evidence and further statement of the present petitioner - original accused, the petitioner chosen to examined defence witnesses as well as to give evidence on oath. In the further statement it was the specific case on behalf of the petitioner that except signature on the cheque which has been dishonoured, nothing was written on the cheque by him and all other things were inserted on the cheque by the complainant or somebody else on instruction of the complainant. Therefore, the present petitioner preferred applications Exh.18 and 19 requesting the learned trial Court to send the said cheque for the purpose of examination of it by handwriting expert which has been rejected by the learned trial Court by the impugned order dated 19.01.2009. Being aggrieved and dissatisfied with the impugned common order passed by the learned trial Court passed below applications Exh.18 and 19 in Criminal Case No.-1088/2008) in rejecting the applications submitted by the petitioner to send the said cheque to the handwriting expert to prove the defence of the petitioner that the contents on the said cheque are not made by the petitioner, the petitioner - original accused has preferred the present Special Criminal Application under Article 227 of the Constitution of India read with Section 482 of the CrPC.

(3.) Shri Hardik Dave, learned advocate appearing on behalf of the petitioner has vehemently submitted that the impugned common order passed by the learned trial Court rejecting the application of the petitioner to send the cheque in question to handwriting expert to prove the defence of the petitioner that the contents on the said cheque are not made by the petitioner - accused, is absolutely illegal and contrary to the provisions of statutes and contrary to the decision of the Hon'ble Supreme Court in the case of T. NAGAPPA V. Y.R. MURALIDHAR REPORTED IN, 2008 AIR(SC) 2010 It is submitted that as held by the Hon'ble Supreme Court in the aforesaid decision, for the defence of mis use of cheque by the complainant, opportunity must be granted to the accused for adducing the evidence. Therefore, making above submissions and relying upon above decision, it is requested to allow the present petition.