Procedure to be followed by handwriting expert when dishonoured cheque is sent to him for examination

The learned Magistrate refused to send the cheque to the
handwriting expert on the ground that 'Section 20 of the Negotiable
Instruments Act authorises that payee or holder in due course to complete
an incomplete negotiable instrument'. 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'. In any case, once the cheque is
required to be sent to the handwriting expert, with respect to his opinion as
regards signature thereon, there is absolutely no justification for
preventing the expert from opining about the other handwriting on the
cheque, also.

The impugned order amounts to preventing the petitioner
from obtaining and adducing evidence in his defence.
It amounts to denying him an effective and sufficient opportunity of defending himself.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Sharad s/o. Balasaheb Sangle,

v
Deepak manohar newse
CORAM : ABHAY M. THIPSAY, J.
DATE : 6TH JANUARY 2014
Citation; 2014(5) MHLJ 535 Bom


The petitioner is the accused in S.T.C. No. 584/2011, pending
before the Judicial Magistrate (First Class), Kopargaon. The case is in
respect of an offence punishable under Section 138 of the Negotiable
Instruments Act, 1881. The respondent no.1 herein is the complainant in

the said case. The trial is in progress. The affidavit of the respondent no.
3.
1, in lieu of evidence in examination in chief, has been filed.
After the affidavit of evidence had been filed, the petitioner
made an application (Exhibit 29) before the Magistrate, contending that
the handwriting and signature on the cheque in question, was not of the
petitioner, and that, it was necessary to send the cheque to an expert for
opining about the handwriting and signature thereon. This application was
rejected by the learned Magistrate by his order dated 10th May 2013.
Being aggrieved thereby, the petitioner has approached this Court by filing
the present petition.
4.
The petitioner has taken a specific contention that, the
handwriting and the signature on the cheque in question, is not of his.
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.

5.
The learned Counsel for the respondent no.1, however,
handwriting on the cheque.
contended that it is not necessary to seek any opinion with respect to the
He submitted that once the question of
handwriting the matter in the cheque is written.
6.
signature would be decided, it would be immaterial as to in whose
It is not possible to accept this contention. As to who has
written the matter on the cheque, also would be relevant, depending on the
facts of the case. It would not be relevant only where a complainant

agrees that the same has been written by him, and that, the accused had
given only a blank signed cheque to him. When such is not the case, the
identity of writing on the cheque also would be relevant. What would be
the effect of the conclusion, if it is arrived at, that 'the cheque is not in the
handwriting of the accused', would depend on the facts of each case.
7.
The learned Magistrate refused to send the cheque to the
handwriting expert on the ground that 'Section 20 of the Negotiable
Instruments Act authorises that payee or holder in due course to complete
an incomplete negotiable instrument'. 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'. In any case, once the cheque is
required to be sent to the handwriting expert, with respect to his opinion as
regards signature thereon, there is absolutely no justification for
preventing the expert from opining about the other handwriting on the
cheque, also.

The impugned order amounts to preventing the petitioner
from obtaining and adducing evidence in his defence.
It amounts to
8.
9.
denying him an effective and sufficient opportunity of defending himself.
However, I find that the application to send the cheque to the
handwriting expert was made at the stage when the evidence of the
complainant was still going on.
Though I am inclined to allow the

avoid delay in holding the trial.
The petition is allowed.
10.
(a)
petition, it would be necessary to clarify certain aspects of the matter to
The impugned order dated 10th May 2013 is set aside. The learned
Magistrate shall allow the application - Exhibit 29 - on the condition that
the petitioner deposits an appropriate amount in the court of the
Magistrate, towards the necessary expenses, including the fee of the
expert.
(b)
It is made clear that, this shall not prevent the Magistrate from
insisting on the petitioner proceeding with the cross examination of the
respondent no.1 and his witnesses, if any, produced before the Magistrate.
(c)
The learned Magistrate shall expedite the trial and endeavour to
complete it as early as possible.

Rule is made absolute in the aforesaid terms.
11.

( ABHAY M. THIPSAY )

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