Mahadev Ramchandra Jankar vs Shankar Eknath Mali & Anr.

Heard, Mr. Pratik Patil, learned Advocate for the Petitioner and Mr. C.D. Mali, learned APP for the State.

By this Writ Petition filed under Article 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, the Petitioner has assailed the Order dated 9^th August 2018 passed by the Judicial Magistrate First Class, Sangola (“Magistrate”), which rejected the application filed by the Petitioner at Exhibit 21 in S.T.C. No. 5 of 2016 (“impugned order”).

The material facts relevant to the adjudication of this petition are that the Respondent No.1 (Complainant) initiated proceedings before the Magistrate under Section 138 of the Negotiable Instruments Act, 1881 (“NI Act”), read with Section 420 of the Indian Penal Code, against the Petitioner (Accused), registered as S.T.C. No. 5 of 2016. The complaint relates to non-payment of cheque No. 075848, dated 23^rd October 2015, for Rs. 9,25,000/-, drawn on Sangola Urban Cooperative Bank Limited, Sangola, in favour of Respondent No. 1 (“said cheque”). The complaint was preceded by a demand notice dated 19^th November 2015, to which the Petitioner replied vide his reply dated 2^nd December 2015. The Petitioner's failure to comply with the demand for payment within the stipulated time led to the filing of the complaint.

a. The Magistrate took cognisance of the complaint and issued process on 18^th February 2016. Upon receipt of the summons, the Petitioner appeared. The Magistrate recorded the substance of the accusation against the Petitioner on 2^nd April 2016.

b. On 28^th November 2017, the Petitioner filed an application (at Exhibit 21) in S.T.C. No. 5 of 2016, seeking to refer the said cheque to a handwriting expert to ascertain the age of the Petitioner's signature on the said cheque. This request was opposed by Respondent No. 1.

c. By the impugned order, the Magistrate dismissed the application at Exhibit 21, holding that there was no need to refer the said cheque to a handwriting expert, as the Petitioner's contentions would constitute his defence and that he would have the opportunity to lead his defence in the trial.

Mr. Pratik Patil, learned Advocate for the Petitioner, submits that the impugned order is illegal. He further submits that the issue raised by the Petitioner in the application at Exhibit 21, viz. the need to determine the age of the Petitioner’s signature on the said cheque, goes to the root of the matter. He relies on the decision in T. Nagappa Vs. Y. R. Muralidhar ^{11.(2008) 5 SCC 633} .

Despite notice in this petition, Respondent No. 1 remains absent.

Mr. C. D. Mali, learned APP for the State, submits that the impugned order is within the bounds of law and that no fault is found therein.

The record on file in this petition was perused with the assistance of the learned Advocates appearing for the respective parties.

The Petitioner has admitted signing the said cheque. The Petitioner has not raised any contentions in this petition regarding the issuance of the cheque, its dishonour on presentation by the payee, the issuance of the statutory notice under Section 138 of the NI Act or the filing of the complaint within the prescribed statutory period. Thus, the statutory presumption contemplated under Section 139 of the NI Act comes into play.

In T. Nagappa (supra), the cheque in question was signed in 1999 and the handwriting appearing on the cheque was filled up in the month of August, October and December 2004. In that context, an expert opinion was found necessary.

In contrast, in the case at hand, the Petitioner does not contend that there is any variance either in the writing in the body of the said cheque or in the signature, or, for that matter, in the ink used.

The solitary contention urged by Mr. Pratik Patil, learned Advocate for the Petitioner, for filing the application at Exhibit-21 is to ascertain the age of the Petitioner’s signature on the said cheque. Apart from stating that the age of the signature on the said cheque is required to be ascertained, the Petitioner has not produced any material to even prima facie test the Petitioner's contention regarding the age of his admitted signature on the said cheque. The application at Exhibit-21 appears to be a roving inquiry intended to prolong the proceedings.

The Magistrate has given acceptable reasons for rejecting the application at Exhibit 21. The Petitioner has failed to show any perversity or error in the impugned order. Accordingly, the impugned order is sustained.

In view of the above, no case is made out for entertaining this Petition.

This Petition has been pending since 2018. By order dated 20^th September 2022 in this Petition, the Petitioner was exempted from personal appearance before the Magistrate in S.T.C. No. 5 of 2016. Mr. Pratik Patil, learned Advocate for the Petitioner, informs that S.T.C. No. 5 of 2016 before the Magistrate has not proceeded further. Considering the above situation, the Magistrate is requested to dispose of the said S.T.C. No. 5 of 2016 in accordance with law as expeditiously as possible and at any rate within six (6) months from the receipt of this judgment being placed on record in S.T.C. No. 5 of 2016.

The Petitioner is directed to place this judgment before the Magistrate in S.T.C. No. 5 of 2016 on the next date fixed in the matter. In addition, the Registry of this Court is directed to forward this Judgement to the Judicial Magistrate First Class, Sangola, before whom the proceedings in S.T.C. No. 5 of 2016 are pending.

Criminal Writ Petition No. 4142 of 2018 stands dismissed. No orders as to costs.