9911796707
TMI Blog2011 (5) TMI 1135X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the respondent and was allowed by the learned lower court. 2 Such of the facts, which are necessary for just decision in this application, can be summarized as follows:- i) The applicant herein has filed a private complaint before the learned J.M.F.C. Amalner under Section 138 of Negotiable Instrument Act 1881 on the ground that the cheque issued by the respondent No. 2 herein dated 12.2.2007 drawn on Amalner Urban Co-operative bank bearing No. 044152 in the sum of Rs.9,59,000/- was deposited by the applicant herein on 17.2.2007 with Jalgaon Janta Sahakari Bank, Branch Amalner. The said cheque was returned back by the bankers of the applicant as dishonoured on 19.2.2007 with a remark insufficient funds . Thereafter, a legal no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of single person. iii) It appears that after hearing both sides, the learned J.M.F.C. allowed the application and referred the disputed cheque to the handwriting expert for his opinion on the above referred three points with further directions that only the accused to give his specimen handwriting before referring the disputed documents to obtain opinion of the handwriting expert. 3 Being aggrieved by the said order passed below Exh.94, by the learned J.M.F.C. Amalner vide his order dated 22.12.2009, the original complainant is before this Court. 4 I have heard the learned counsel for the applicant followed by the submissions of the learned counsel for the respondent. During the course of submissions, it is urged that even thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to send the disputed documents for reference of the hand writing expert only come into play after he examined under section 313 of Cr.P.C. In the premises, it cannot be inferred that he has prolonged and protracted the litigation and this false application is given by the respondent before the trial court and present application be dismissed. 6 In the light of the submissions made across the bar, I have perused the record. It is a matter of fact that the notice issued by the applicant before institution of the complaint dated 26.2.2007 was replied by the respondent by his reply notice dated 13.3.2007. Unfortunately, this reply notice was not before the court who had issued process. Perusal of para 5 of this reply notice discloses that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cheque but it is his stand that the particulars of the cheque filled in the cheque are not in his handwriting. As against this, it is the stand taken by the complainant that cheque was issued by the respondent which is a complete instrument. 7 At this juncture it is useful to refer to the observation of the Apex Court in the matter of T. Nagappa (supra) wherein it is observed by the Apex Court that right of the accused to fair trial, is a right to defend himself, the right to defend oneself and for that purpose to adduce evidence is recognized by section 243(2) of Cr.P.C. What should be the nature of evidence is not a matter which should be left only to the discretion of the Court. It is the accused who knows how to prove his defenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Such right has to be used only for furthering the cause of justice but not subverting it. Accused cannot take recourse to such right for purpose of delaying proceedings. On facts, accused filing successive applications for referring the documents to the opinion of the expert such opportunity to be offered to the accused. 9 In the light of the observations of the Apex Court which I have referred to in the matter of T. Nagappa (supra) so also in the matter of G. Someshwar Rao (Supra) it is observed by the Apex Court that if defence is put up by the accused in the case under Section 138 of Negotiable Instruments Act, whether the accused admit his signature on the exhibited documents but disputed the particulars of exhibited instruments an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination whether hand writing and the particulars of the cheque are in the handwriting of the accused or in the hand writing of the complainant. These exercise be completed within a period of three months form the receipt of writ of this judgment to the lower court. The respondents No.2 to bear the expenses of charges of the expert. 12 It is informed that already 7.5.2011 is the date fixed before the lower court. The parties to collect authenticated copy of this judgment and to place it before the lower court. After appearance of the parties this exercise to be completed by the lower court within a period of three months. As directed earlier the hand writing expert to submit his report within a period of three months and if extra special ..... X X X X Extracts X X X X X X X X Extracts X X X X
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