1.00. RULE. Mr.S.D. Motwani, learned advocate appearing with Mr.Dipak R. Dave, learned advocate waives the service of notice of rule on behalf of the respondent No.1 and Ms.Chetna Shah, learned Additional Public Prosecutor waives the service of notice of rule on behalf of the respondent No.2 – State. 2.00. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, present Revision Application is taken up for final hearing today.
3.00. Present Criminal Revision Application under section 397 read with section 401 of the Code of Criminal Procedure has been preferred by the petitioner – original accused to quash and set aside the impugned order passed by the learned Additional Sessions Judge, Mehsana dtd.28/2/2012 passed in Criminal Revision Application No.120 of 2010 by which the learned appellate court has allowed the said appeal preferred by the respondent No.1 – original complainant and has quashed and set aside the order passed by the learned Judicial Magistrate (First Class), Kadi dtd.31/8/2010 passed below Ex.110 in Criminal Case No.49 of 2004 by which the learned trial court had allowed the said application submitted by the petitioner – original accused to sent the instrument / cheque in question to the handwriting expert for verification of the signature on the instrument / cheque in question.
4.00. That the respondent No.1 – original complainant has instituted Criminal Case No.49 of 2004 against the petitioner herein – original accused in the court of learned Judicial Magistrate (First Class), Kadi for the offence punishable under section 138 of Negotiable Instruments Act. It appears that earlier in the year 2006 the petitioner submitted application Ex.28 to sent the instrument / cheque in question to the handwriting expert by submitting that the signature of the instrument / cheque in question is not of the petitioner, however, at the relevant time evidence had not begun and even the original complainant was yet to be examined and therefore,e the learned Judicial Magistrate (First Class), Kadi by order dtd.1/4/2006 dismissed the said application by observing that the said application is rejected at this stage.
5.00. It appears that Being aggrieved by and dissatisfied with the order passed by the learned Judicial Magistrate (First Class), Kadi dtd.1/4/2006 below Ex.28, petitioner preferred Revision Application No. before the Sessions Court which also came to be dismissed. It appears that thereafter, after the evidence of the parties was recorded i.e. deposition of the original complainant as well as the officers of the Bank were recorded, the petitioner again submitted application Ex.110 requesting to sent the instrument / cheque in question to handwriting expert. The said application came to be allowed by the learned Judicial Magistrate (First Class), Kadi by order dtd.31/8/2010. Being aggrieved by and dissatisfied with the order passed by the learned Judicial Magistrate (First Class), Kadi below Ex.110, respondent No.1 – original complainant preferred Revision Application No.120 of 2010 before the revisional Court - learned Additional Sessions Judge, Mehsana who by the impugned Judgement and Order has allowed the said Revision Application by quashing and setting aside the Judgement and Order passed by the learned JMFC, Kadi passed below Ex.110 in cc No.49 of 2004.
6.00. Being aggrieved by and dissatisfied with the impugned order passed by the revisional court, petitioner – original accused has preferred the present Revision Application us 397 read with section 401 of the Code of Criminal Procedure.
7. Mr.Goswami, learned advocate appearing on behalf of the petitioner has submitted that the learned Family Court has materially erred in allowing the Revision Application and quashing and setting aside the order passed by the learned Judicial Magistrate (First Class) below Ex.110. It is submitted that the impugned decision of the revisional court is just contrary to the decision of the Hon'ble Supreme Court in the case of Kalyani Baskar (Mrs) Versus M.S. Sampooranam (Mrs), reported in (2007) 2 SCC 258, in the case of T.Nagappa Versus Y.R. Murlidhar, reported in (2008) 5 SCC 633 as well as in the case of Madhubhai Patel Versus Joitaram Patel, reported in 2005 (3) GLH 525. It is submitted that as held by the Hon'ble Supreme Court in the case of T.Nagappa (supra), accused has right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India and has a right to defend to adduce evidence to prove his innocence.
Making above submissions and relying upon above decisions it is requested to allow the present Revision Application and quash and set aside the impugned order passed by the learned Revisional Court and to restore the order passed by the learned Judicial Magistrate (First Class), Kadi below Ex.110 in Criminal Case No. 49 of 2004.
8. Mr.Motwani, learned advocate appearing for Mr.Dipak Dave, learned advocate appearing on behalf of the respondent No.1 – original complainant has tried to oppose the present Revision Application by submitting that the learned Revisional Court has rightly exercised the discretion and has rightly exercised the revisional jurisdiction and it has been found that the accused has tried to delay the matter and therefore it is requested to dismiss the present Revision Application.
9. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned order passed by both the courts below.
10. At the outset, it is required to be noted that the petitioner submitted application Ex.10 before the learned trial court to sent the instrument / cheque in question to the handwriting expert to verify the signature as it was the case on behalf of the petitioner that the signature on the disputed cheque in question does not bear his signature.
11. Considering the defence of the accused, the learned trial court allowed the said application Ex.110, however, the same is set aside by the learned Revisional Court by observing that the accused has tried to delay the proceedings and in fact the cheque in question is not returned with endorsement “signature differs”. The decision of the revisional court is just contrary to the decisions of the Hon'ble Supreme Court in the case of Kalyani Baskar (Mrs) (supra) as well as in the case of T.Nagappa (supra). Considering the aforesaid decisions of the Hon'ble Supreme Court, the impugned order passed by the learned Revisional Court cannot be sustained and the matter is to be remanded and the order passed by the learned Judicial Magistrate (First Class), Kadi is required to be restored.
12. in view of the above and for the reasons stated above, present Revision Application succeeds. The impugned order passed by the learned Additional Sessions Judge, Mehsana in Criminal Revision Application No.120 of 2010 dtd.28/2/2012 is hereby quashed and set aside and the order passed by the learned Judicial Magistrate (First Class), Kadi below Ex.110 in Criminal Case No.49 of 2004 dtd.31/8/2010 is hereby restored and consequently application Ex.110 is allowed and the learned trial court is hereby directed to send the instrument/cheque to the handwriting expert for verification of the signature on the instrument / cheque in question at the earliest and see to it that such report is received within a period of three months and thereafter conclude the trial at the earliest but not later than six months thereafter. Rule is made absolute accordingly.
Direct Service is permitted.
[M.R. SHAH, J.] rafik