Gujarat High Court
Amrutlal Baldevbhai Patel, Proprietor ... vs State Of Gujarat on 7 August, 2020
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
R/SCR.A/2654/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2654 of 2020
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AMRUTLAL BALDEVBHAI PATEL, PROPRIETOR OF RAMDEV OIL MILLS
Versus
STATE OF GUJARAT
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Appearance:
MS HETVI H SANCHETI(5618) for the Applicant(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2
MR JM BAROT(143) for the Respondent(s) No. 3,4
MS. NISHA THAKOR, ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 07/08/2020
ORAL ORDER
1. On the facts and in the circumstances of the case and with the consent of the learned advocates for the respective parties, the present petition is taken up for final disposal.
2. Rule. Ms. Nisha Thakor, learned Additional Public Prosecutor waives service of Rule on behalf of the respondent No.1. Mr. J. M. Barot, learned advocate waives service of Rule on behalf of the respondent Nos.2 to 4.
3. The present petition has been filed under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 praying for direction for quashing and setting aside the order dated 14.2.2020 passed below Exhibit 89 in Criminal Case No.2166 of 2016 by the learned 2nd Additional Civil Judge & Judicial Magistrate First Class, Virmagam, Ahmedabad.
4. The brief facts are as under: -
Page 1 of 5 Downloaded on : Mon Feb 22 04:44:30 IST 2021R/SCR.A/2654/2020 ORDER 4.1 The petitioner, has filed the Criminal Case No.2166 of 2016
against the respondent Nos.2 to 4 in connection with the transaction that was entered into between the parties regarding sale and purchase of cotton bales for which cheques of total amount of Rs.28,27,173/- came to be issued on behalf of the respondent Nos.2 to 4. Upon presentation, the cheques were dishonoured; which led to issuance of the statutory legal notice by the petitioner, followed by filing of the complaint before the concerned court.
4.2 In the interregnum, apropos the complaint of the complainant - petitioner, the respondent Nos.2 to 4 moved this court seeking quashing of the complaint which was not entertained, resulting into withdrawal of the said proceeding.
4.3 It is thereafter that the trial proceeded and the petitioner had filed his examination-in-chief on 29.11.2017 - Exhibit 28 and thereafter the cross examination of the complainant was completed on 21.2.2019. After the completion of the evidence on the part of the complainant, a closing purshis was filed to that effect by the petitioner and the matter reached at the stage of the defence evidence. Amongst various documents, the respondent produced a document on the stamp paper of Rs.100/- which bore the signature of the present petitioner. The said document is taken in evidence and marked as Exhibit 80. On the very same day that is on 19th October, 2019, the complainant and the accused moved two separate applications with the common request that the said document Exhibit 80 be sent for expert opinion with respect to different issues. It is the case of the petitioner that the prayer of the resondents was to the effect that the alleged signature of the complainant on the document be verified as to whether the signature is of the petitioner or not. As against this, the petitioner vide application Exhibit 89 requested to seek opinion on the aspects, namely, (i) the time of the writing on the document; and (ii) whether the writing on the Page 2 of 5 Downloaded on : Mon Feb 22 04:44:30 IST 2021 R/SCR.A/2654/2020 ORDER stamp paper is type-written or is obtained from a xerox machine.
4.4 The record further reveals that the application of the respondent Nos. 2 to 4 came to be allowed; whereas, the application filed by the petitioner came to be rejected. Being aggrieved, the present petition has been filed with the aforementioned prayers.
5. Mr. Narendra Jain, learned advocate submitted that the learned Magistrate ignored the fact that the original document Exhibit 80 was produced and relied upon by the respondent Nos. 2 to 4; whereas, the complainant had only produced the photocopy thereof. It is submitted that unless the original document was brought on record, the complainant had no opportunity or occasion to present the request for sending the document for expert opinion. It is next submitted that the order under challenge has been passed under misconception that the right of the complainant has been over on submission of the closing purshis filed by the complainant. It is submitted that on filing the closing purshis, the right is very much available to him to deal with the evidence that is produced by the respondent Nos. 2 to 4 subsequently.
6. On the other hand, Mr. J. M. Barot, learned advocate for the respondents No.3 and 4 has not disputed the said aspect that the document was subsequently produced by the respondent Nos.2 to 4, after filing of the closing purshis and that the petitioner had no opportunity to raise any objection.
7. Heard Mr. Narendra Jain, learned advocate for Ms. Hetvi Sancheti, learned advocate for the petitioner, Ms. Nisha Thakor, learned Additional Public Prosecutor for the respondent - State and Mr. J.M. Barot, learned advocate for the respondent Nos.3 and 4 through video conference.
Page 3 of 5 Downloaded on : Mon Feb 22 04:44:30 IST 2021R/SCR.A/2654/2020 ORDER
8. Pertinently, the learned 2nd Additional Civil Judge & Judicial Magistrate First Class, Viramgam, Ahmedabad has passed the order below Exhibit 90; wherein, the document Exhibit 80, has been ordered to be sent to the Handwriting Expert, Forensic Science Laboratory, Gandhinagar with a direction for verification of the signature of the applicant on the said document vis-a-vis the signature of the applicant on the other documents.
9. Undeniably, the original document relied upon by the respondent Nos.2 to 4 was produced on the record subsequently, whereas, the petitioner had produced the photocopy. It is only when the original document was produced on the record that the occasion arose to the petitioner as well as the respondent Nos.2 to 4 to deal with the said document. Consequently, the petitioner, so also the respondent Nos.2 to 4 made requests for sending the document to determine the aspects stated in their respective applications, for expert opinion. The request of the respondent Nos.2 to 4 for sending the document for expert opinion has been acceded to by the learned Judge. However, the request of the petitioner has been turned down. Since the document has been ordered to be sent for expert opinion, it is important that the issue is adjudicated effectively for determining the correct truth. Hence, to secure the ends of justice, the Handwriting Expert opinion is also directed to verify the aspects, namely, (i) Whether the signature of the petitioner on the document, Exhibit 80, and the contents thereof have been executed at the same time ? and (ii) Whether the signature of the petitioner on the document has been obtained through mechanical process, i.e. by the use of computer or xerox machine ?
10. In view of the aforesaid direction, the order dated 14.2.2020 passed by the learned 2nd Additional Civil Judge & Judicial Magistrate First Class, Viramgam, Ahmedabad below Exhibit 89 in Criminal Case No.2166 of 2016, is hereby quashed and set aside. It is clarified that Page 4 of 5 Downloaded on : Mon Feb 22 04:44:30 IST 2021 R/SCR.A/2654/2020 ORDER upon receipt of the opinion of the Handwriting Expert, Forensic Science Laboratory, Gandhinagar, the trial may proceed in accordance with law.
11. The learned advocate for the petitioner is directed to serve a copy of the present order directly to the Director, Forensic Science Laboratory, Gandhinagar.
12. Rule is made absolute to the aforesaid extent. The present petition is disposed of.
(SANGEETA K. VISHEN,J) Ravi Patel / ALI ISTAYAK Page 5 of 5 Downloaded on : Mon Feb 22 04:44:30 IST 2021