2010(2) ALL MR 655
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)
U.D. SALVI, J.
Shri. Nilesh J. Raikar Vs. Shri. Ramakant S. Karekar & Anr.
Criminal Appeal No.14 of 2007
7th December, 2009
Petitioner Counsel: Mr. A. DINIZ
Respondent Counsel: Mr. GUIRISH SARDESSAI
Negotiable Instruments Act (1881) S.138 - Dishonour of cheque - Accused submitting that cheques in question were stolen and forged - Order of conviction passed by J.M.F.C. - Acquittal of respondent/accused by Sessions Court - Appeal against - Respondent accused prepared to give his specimen signatures and handwritings and submit to the examination vis-à-vis the specimen and admitted handwritings and signatures with the disputed handwritings and signatures on the cheques at the hand of hand-writing expert - No objection from appellant - Judgment and Order of Sessions Judge and also of J.M.F.C. set aside - Held, J.M.F.C. shall pass appropriate orders in accordance with law. (Paras 5, 6)
JUDGMENT :- This is an Appeal seeking reversal of the judgment and order of acquittal dated 31.8.2006 passed by the Sessions Court (II) Margao in Criminal Appeal No.9/2006 and restoration of the order of conviction passed by the learned JMFC, Margao dated 27.12.2005 in Criminal Case No.130/N/96/D under section 138 of Negotiable Instruments Act, 1881.
2. Controversy in the present case arises on the issue of issuance and delivery of two cheques bearing cheque no.623587 dated 1.7.1996 for Rs.2,00,000/- and cheque no.623587, dated 1.7.1996 for Rs.2,65,000/- by the respondent/accused Ramakant Karekar in favour of the appellant/complainant Nilesh Raikar. The appellant/complainant pleaded before the trial Court that the respondent/accused had issued the said cheques in course of jewellery business. This assertion of the appellant/complainant has been seriously disputed by the respondent/accused. It is his contention that the said cheques were stolen from his custody and were forged, in respect of which he had lodged a police complaint. Briefly, the respondent/accused disputes his hand-writing and his signatures on the said cheques.
3. Learned trial Court observed that the accused had made futile attempts to lead defence evidence and the accused should have led the evidence of hand-writing expert to prove the case of forgery. The learned trial Court further observed that both the cheques were from the cheque book of the accused person and it was therefore incumbent upon the accused to refer both the cheques to the hand-writing expert. These observations, it appears, weighed in the mind of learned Trial Court to convict the respondent/accused.
4. In this context, learned Sessions Judge, while upholding the contention of the respondent/accused - the appellant before it, observed that the specimen signature card of the accused held by the concerned bank ought to have been produced on record, and the learned trial Court in its own discretion would have taken recourse to section 73 of the Evidence Act and nothing of the sort was done and, therefore, the case of the accused that the cheques for the said amounts favouring the complainant herein were not drawn by him gains supports. The learned Sessions Judge further observed that the learned Court was in error in holding that the respondent/accused herein had issued the cheques when the nature of the document was itself under a serious doubt and no attempts were made by the complainant to refer the cheques to hand-writing expert in the face of the specific plea raised by the defence.
5. In midst of this controversy, the respondent accused is now prepared to give his specimen signatures and hand-writings and submit to the examination vis-à-vis the specimen and admitted hand-writings and signatures with the disputed hand-writing and signatures on the cheques at the hands of hand-writing expert CFSL Hyderabad at his own expense and to examine such expert, if necessary, before the Trial Court for throwing light on the controversy involved. The appellant has no objection to such exercise being undertaken for the purpose of judicial acuity.
(i) The judgment and order of acquittal dated 31.8.2006 passed by the Sessions Judge-II Margao in Criminal Appeal No.9/2006 and the judgment and order of the learned J.M.F.C., Margao in Criminal Case No.130/N/96/D convicting the respondent accused under Section 138 of N.I. Act, 1881 are set aside.
(ii) Parties shall appear before the learned J.M.F.C., Margao on 11.1.2010 and on that day the respondent accused shall move an application before the learned J.M.F.C., Margao for taking his specimen hand-writings and signatures and for referring them along with his admitted and disputed hand-writings and signatures on record to the hand-writing expert of CFSL at Hyderabad for their examination and opinion as to the disputed hand-writing and signatures on the said cheques at his own expense.
(iii) The learned J.M.F.C., Margao shall pass appropriate orders in accordance with law for sending such hand-writing/signatures to CFSL, Hyderabad.
(iv) The learned J.M.F.C., Margao shall after receiving the opinion of the hand-writing expert, CFSL, Hyderabad, if necessary, examine the concerned hand-writing expert and dispose of the said case after hearing both the parties and considering the entire evidence led before it in accordance with law.
(v) The respondent accused shall furnish fresh bail bond before the Trial Court.