Meena Tiwari v. Satya Prakash Capital Investment Ltd.
2008-01-03
K.S.CHAUHAN
body2008
DigiLaw.ai
Judgment ( 1. ) THE petitioner/ accused has preferred this petition under section 482 Cr. P. C. for permitting her to examine cheque (Ex. P-1) by a handwriting expert. ( 2. ) THE brief facts of the case are that petitioner took loan of rs. 1,20,000/-from respondent for purchasing a car. The amount of rs. 1,56,055/-with interest was required to be paid in 23 instalments each instalment being of Rs. 6785/ -. She issued post dated cheques. The disputed cheque is of 12th March, 2003 which was issued only for rs. 6785/-, but it has been interpolated by adding No. "9" before "6785", making it Rs. 96, 785/-forgedly. The petitioner had signed the cheques and only Rs. 6785/-were written in the cheques and rest columns were left empty. Interpolation is done in cheque hence it is forged one. She did not receive any notice, therefore, there was no question to sign its acknowledgement. Since the time for revision has already been elapsed, therefore, this petition is preferred for invoking the inherent jurisdiction of this Court. ( 3. ) LEARNED counsel for the petitioner has submitted that interpolation has been done in the disputed cheque. The amount is made from 6785 to 96785, therefore, examination of this document (Ex. P-1) by handwriting expert is essential. Further he has submitted that the applications filed in this behalf have been rejected by trial court. The rejection of application is erroneous because the petitioner is being deprived of the opportunity to get this document examined by hand writing expert. Therefore, for the ends of justice this petition be allowed. ( 4. ) ON the other hand, Shri Sharad Gupta, learned counsel for the respondent has supported the orders passed by the trial Court mainly contending that the application dated 3. 3. 2996 filed by the petitioner was rejected on 17. 4. 2006 but no criminal revision was filed against that order. Subsequently, another application has also been rejected on 19. 3. 2007. The notice was sent on her correct address. The acknowledgement contains her signature. The reply has also been filed on her behalf. The trial Court has not committed any illegality in rejecting her applications therefore no interference is called for in the matter. ( 5.
Subsequently, another application has also been rejected on 19. 3. 2007. The notice was sent on her correct address. The acknowledgement contains her signature. The reply has also been filed on her behalf. The trial Court has not committed any illegality in rejecting her applications therefore no interference is called for in the matter. ( 5. ) ON perusal of available record, it reveals that the respondent/ complainant filed a complaint under section 138 of the Negotiable instrument Act, 1881 for taking action against the petitioner for dishonour of cheque dated 12. 5. 2003 issued by her. In this case, petitioner submitted an application under section 45 of the Indian evidence Act stating therein regarding interpolation in the amount of cheque and permission to get cheque examined by hand-writing expert. This application was rejected by trial Court on 17. 4. 2006 mainly on the ground that such objection ought to have been raised in reply. The application is filed to delay the matter. It was not necessary to write entire body of cheque by petitioner. Since she has admitted her signature on the cheque, therefore, there is no need to get it examined by Handwriting Expert. ( 6. ) NO doubt she ought to have preferred revision against this order but failed to do so. Instead again agitated the mater in the trial Court by filing an application on 20. 1. 2007 mentioning therein that she did not receive any notice, there was no question to raise such objection by way of reply. This application was rejected on 19. 3. 2007. Instead of filing revision against this order the matter has been agitated by filing this petition with a prayer to permit her to examine the document by handwriting expert. Under these circumstances, concerned Magistrate ought to have seen the documents carefully whether there is any difference in No. 9 and 6785 written in this cheque, if so, the permission ought to have been granted. On bare perusal of this document difference in these numbers becomes quite obvious hence rejection of applications in the mechanical manner was not proper. ( 7. ) IT appears that the learned trial Court has not taken into consideration the real controversy in proper perspective. The Issue was not whether the petitioner issued the cheque or not but was whether there has been any interpolation in the amount of cheque ?
( 7. ) IT appears that the learned trial Court has not taken into consideration the real controversy in proper perspective. The Issue was not whether the petitioner issued the cheque or not but was whether there has been any interpolation in the amount of cheque ? admittedly, the loan was to be repaid in 23 instalments each inslatment being of Rs. 6785/ -. The loan was given on 18. 1. 2001 and this cheque was of 12. 5. 2003. It was the contention of the petitioner that the amount of Rs. 6785/-was written before him but other columns of cheque were left empty. She signed the post-dated cheques. In this cheque No. "9" has been added before 6785/ -. Moreover, if permission is granted to the petitioner to get this document examined by Handwriting Expert, then complainant/ respondent is not going to be prejudiced because he will have an opportunity to cross-examine the Handwriting Expert, if report goes against him, and if the permission is refused, then the petitioner may be put in inconvenience and irreparable loss. In the case of nandlal v. State of Maharashtra, 2007 (1) MPLJ 84 it has been held that accused has right to summon the expert witness. ( 8. ) LEARNED counsel of respondent has drawn my attention on the decision rendered in case of Satish Jayantilal Shah v. Pankaj mashruwala 1996 Crlj 3099 , wherein it has been held that entire body of cheque need not be written by maker or drawer, only signature of drawer is material but so far as the present case is concerned the controversy is not whether cheque contains the signature of maker or not but the controversy is that after issuing the cheque interpolation in the amount of cheque has been done and the amount is raised from 6785 to 96785 and thus making this document forged. Therefore, the cited case is quite distinguishable in the matter of controversy raised in this case. ( 9. ) NO doubt petitioner has been lethargic in not filing revision against such orders and prosecuting the matter diligently but that cannot defer her to get justice. ( 10. ) KEEPING in view the entire facts and circumstances of this case, it can be said that the trial Court has committed illegality in rejecting the applications of the petitioner for getting the disputed document (Ex. P-1) examined by Handwriting Expert.
( 10. ) KEEPING in view the entire facts and circumstances of this case, it can be said that the trial Court has committed illegality in rejecting the applications of the petitioner for getting the disputed document (Ex. P-1) examined by Handwriting Expert. Therefore, such orders are required to be interfered by invoking the inherent power of this Court. ( 11. ) CONSEQUENTLY, the petition succeeds and is allowed. The orders of trial Court passed on 17. 4. 2006 and 19. 3. 2007 are hereby set aside. Petitioner be permitted to examine the cheque (Ex. P-1) by handwriting expert as per provisions of law.