GANGASHAR DEORAM KADAM Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard Mr. Totla, the learned counsel for the petitioner. Heard Mr. Muley, the learned APP for respondent No. 1. Heard Mr. Awasarmal, the learned counsel for the respondent No. 2. The petitioner is the accused in STC No. 1450/2012, pending before the Judicial Magistrate First Class, Aurangabad. The said case is in respect of an offence punishable u/s. 138 of the Negotiable Instruments Act, and arises on a complaint made by the respondent No. 2, herein. (For the sake of convenience and clarity, the respondent No. 2 shall hereinafter be referred to as 'the complainant' and the 'petitioner' as 'the accused'.)

(2.) The trial is in progress. The evidence of the complainant has been adduced. When the matter was kept for examination of the accused u/s. 313 of the Code of Criminal Procedure, the accused made an application (Exh. 37), contending that, 'the contents of the cheque and signature were different' and that, the cheque was a fabricated document. The accused contended that, the signature on the cheque was not his, and that, due to paralysis, the accused was not in a position to write or to sign. Contending so, the accused prayed that the cheque in question be sent to a handwriting expert for examination and opinion about the handwriting and signature thereon. The accused also suggested that the specimen writings of the complainant and that of the son of the complainant be also taken for the examination, by the expert. The accused offered to pay the expenses of the hand writing expert. This application was opposed by the complainant, saying, primarily, that the signature on the vakalatnama and on the cheque was prima facie of one and the same person and that, the Bank had returned the cheque with the remark 'insufficient funds'. The complainant prayed for dismissal of the said application.

(3.) The learned Magistrate, after hearing the parties, took the view that the application was devoid of any merit and rejected the same. The complainant approached the Court of Sessions, challenging the said order passed by the Magistrate, by filing an application for revision, but the revision application came to be dismissed.