2009 ALL MR (Cri) 1035
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)
A.P. LAVANDE, J.
Mr. Anthony Carvalho Vs. Mr. Mohammad Naushad
Criminal Writ Petition No.55 of 2008
11th November, 2008
Negotiable Instruments Act (1881) S.138 - Criminal P.C. (1973), S.200 - Dishonour of cheque - Expert's opinion - Plea that signature on cheque and on a related agreement are forged ones hence matter be referred for handwriting expert - Plea rejected on ground of delay - Rejection of plea, held, not proper - Mere fact that the same would delay the proceedings by itself should have weighed with the Magistrate in disallowing the prayer. (Para 6)
Rule. By consent heard forthwith.
2. By this petition, the petitioner challenges the order dated 19.07.2008 passed by the Judicial Magistrate, First Class, Vasco in Criminal Case No.1154/OA/NIA/2005/C by which, the application dated 17/07/2008 filed by the petitioner for referring the agreement dated 07.05.2002 and cheque dated 30.07.2005 for the opinion of expert has been dismissed. The Magistrate has dismissed the application primarily on the ground that the same has been filed with a view to delay the proceedings.
The respondent filed the above Criminal Case against the petitioner for dishonour of the cheque dated 30.07.2005 for an amount of Rs.14,66,000/-. After the complainant completed his evidence and statement of the accused was recorded under section 313 of the Criminal Procedure Code, the accused stepped in the witness box and also examined his father Edward Carvalho. The complainant in the course of his evidence relied upon the agreement dated 07.05.2002, which according to the complainant was executed by Edward Carvalho, the father of the accused. In his evidence, Edward Carvalho denied his signature on the agreement and stated that his signature was forged. On the same day, on behalf of the accused, an application for referring the cheque as well as the agreement for the opinion of the expert was filed. The same was opposed and by the impugned order, the learned Magistrate dismissed the application primarily on the ground that the same was filed with a view to delay the proceedings.
4. Mr. Vahidulla, learned counsel appearing on behalf of the petitioner submitted that the learned Magistrate has exercised jurisdiction illegally and since the accused had stated that he had not signed the cheque and his father Edward had stated that he had not signed the agreement dated 07.05.2002, the learned Magistrate ought to have referred the cheque as well as the agreement for opinion of an expert in order to give an opportunity to the accused to prove his defence. He therefore, submitted that the impugned order be quashed and set aside and the application filed by the accused be allowed.
5. Per contra, Mr. Diniz, learned counsel appearing on behalf of the respondent supported the impugned order. He further submitted that as far as the cheque is concerned, the accused has not disputed that he had signed the cheque and his defence was that he had issued a signed cheque to the complainant with a request to the complainant to fill up the amount due to the Insurance Company. He therefore, submitted that in so far as the cheque is concerned, the question of referring the same for the opinion of the expert does not arise.
6. Having considered the submissions of the learned counsel for the parties and having perused the record, I am of the considered opinion that in so far as the prayer of the accused to refer the cheque for the opinion of the expert is concerned, no fault can be found with the impugned order. The accused at no point of time has disputed his signature and therefore, the question of referring the cheque for the opinion of the expert does not arise, to prove the defence taken by the accused. However, in so far as the agreement dated 07.05.2002 is concerned, I find myself unable to agree with the reason given by the Magistrate. Since the complainant relied upon the agreement which according to the complainant has been executed by Edward, father of the accused and since Edward in his substantive evidence had disputed his signature on the agreement and claimed that the same was forged, the learned Magistrate ought to have allowed the prayer of the accused to refer the said agreement for the opinion of the expert in order to arrive at a finding whether the signature on the agreement is that of Edward or not. Mere fact that the same would delay the proceedings by itself should not have weighed with the Magistrate in disallowing the prayer. Therefore, the impugned order only to the extent it disallows the prayer of the accused to send the agreement for the opinion of the expert deserves to be quashed and set aside and is accordingly, quashed and set aside.
7. The learned Magistrate shall refer the agreement dated 07.05.2005 for the opinion of a handwriting expert whom she feels fit and proper. Learned Magistrate to request the expert to whom the agreement would be sent for opinion to submit his report at the earliest and thereafter proceed to dispose of the case in accordance with law.