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Andhra High Court · body

2008 DIGILAW 529 (AP)

Manda Syamsundar v. Kurella Anjaneyachari

2008-07-17

G.YETHIRAJULU

body2008
ORDER :- The accused in C.C.No.444 of 2006, preferred the present revision case challenging the order of the Junior Civil Judge/Judicial First Class Magistrate, Macherla in Criminal M.P. No.925 of 2008 in C.C. No.444 of 2006. The Criminal Case was filed against him for the offence under Section 138 of Negotiable Instruments Act (for short 'the Act'). It is mentioned in the complaint that the accused gave EX.P.3 cheque for discharge of legally enforceable debt and when he presented the same before the bank, the bank returned the said cheque with an endorsement 'insufficient funds. Subsequently, after issuing notice to the accused and after complying the formalities required under the Act, the complainant filed the above complaint. The accused took the defence that Exs.P.1 and P.2 promissory notes and Ex.P.3 cheque are fabricated on account of vengeance against him. During the pendency of the case, when the case was posted for 313 Cr.P.C. examination, the accused filed Crl. M.P. No.925 of 2008 under Section 45 of the Evidence Act, requesting the Court to send Exs.P.1 to P.3 to the handwriting expert for comparison with the admitted signatures with a memo of special vakalat. The lower Court dismissed the application by observing that the vakalat and memo of reference came into existence after the institution of the complaint and therefore, there is no necessity to the Court to send the documents to the handwriting expert for comparison if there is any substantial evidence on record. 2. Being aggrieved by the order, the accused preferred the present revision petition by contending that the lower Court ought to have given an opportunity to the accused in sending the documents to the handwriting expert for comparison. The learned Counsel for the respondent submitted that the bank manager will have the specimen signatures of the accused, which were taken at the time of opening of the accounts, when the same did not tally on the cheque, he would have returned the cheque with an endorsement 'the signatures did not tally', but the bank manager did not raise such an objection. On the other hand, the cheque was returned with an endorsement 'insufficient funds'. Therefore, there is no necessity for sending the documents to the expert and non-raising of objection about the genuineness of the signature by the bank manager itself is sufficient material to show that the cheque was not fabricated. 3. On the other hand, the cheque was returned with an endorsement 'insufficient funds'. Therefore, there is no necessity for sending the documents to the expert and non-raising of objection about the genuineness of the signature by the bank manager itself is sufficient material to show that the cheque was not fabricated. 3. The learned Counsel for the respondents relied on a judgment of Karnataka High Court in H.M Salish v. B.N. Ashok, 2007 (3) Crimes 502, wherein a learned Single judge of the High Court observed as under: "Accused filed the application under Section 45 of the Act for referring the cheque in question for opinion of a handwriting expert. The accused has answered the question No.5 of the statement recorded under Section 313 of Cr.P.C. stating that he and the complainant were partners in timber business and on account of rift between them, the accused had made use of blank cheque, and he has no defence evidence. In case of denial of signature of drawer of a cheque, the best witness would be the concerned Bank Manager and not a hand writing expert. The learned Magistrate has allowed the application solely on the ground that the accused would be put to greater hardship if the application were rejected. The learned Magistrate has not appreciated the facts on record while allowing the application." 4. In L.c. Goyal v. Mrs. Suresh Joshi, 1999 (3) SCC 376 , the Supreme Court observed as follows: "... the cheque bounced not on account of the fact that the appellant of Ext.C4 was not tallying with the specimen signature of the appellant kept with the bank, but on account of insufficient funds. Had the signature on Ext.C4 been different, the bank would have returned the same with the remark that the signature on Ext.C4 was not tallying with the appellant's specimen signature kept with the bank. The memos Ext.C6 and Ext.C8 issued by the bank clearly show that the signature of the appellant on Ext.C4 was not objected to by the bank, but the same was returned with the remark 'insufficient funds'. This circumstance shows that the signature of Ext.C4 was that of the appellant." 5. The memos Ext.C6 and Ext.C8 issued by the bank clearly show that the signature of the appellant on Ext.C4 was not objected to by the bank, but the same was returned with the remark 'insufficient funds'. This circumstance shows that the signature of Ext.C4 was that of the appellant." 5. In the light of the above decisions and in the light of the return of the cheque not on the ground of signature not tallying, no purpose will be served in sending the document to the handwriting expert and there are no grounds to interfere with the order of the lower Court. 6. The criminal revision petition is accordingly dismissed.