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2011 DIGILAW 1250 (HP)

Rajiv Bansal v. Pankaj Sabarwal

2011-03-14

V.K.AHUJA

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JUDGMENT V.K. Ahuja, J. The petitioner has filed the present petition under Article 227 of the Constitution of India, against the order dated 12.7.2010 passed by the learned Judicial Magistrate 1st Class, Nahan, vide which he had allowed the application filed by the respondent/accused under Section 243 Cr.P.C. read with Section 73 of Indian Evidence Act, for sending the cheque for comparison by a handwriting expert in regard to the figure of amount in the cheque. 2. Notice of the petition was issued to the respondent. 3. I have heard the learned counsel for the parties and have gone through the record. 4. By the impugned order, the learned Magistrate has allowed the application for comparison of the words “One Lac” and figure “1” in the cheque since it was alleged that there was tampering with of the amount filled in the cheque. 5. In support of his submission, the learned counsel for the petitioner had relied upon the decision in Mojj Engineering Systems Ltd. & Ors. Vs. A.B. Sugars Ltd., 2009 (3) Civil Court Cases 529 (Delhi). In that case, it was observed by a learned Single Judge of the Delhi High Court that if the cheque is undated at the time it was drawn, it does not mean that it was given without consideration. It was also observed that in a case of undated cheque, the cheque is deemed to be drawn on the date mentioned on the cheque and not on the date the undated cheque was handed over. It was also observed that in case of an undated cheque, drawer of an undated cheque gives a prima facie authority to fill in the date. Even in the case of date on the cheque, it has been mentioned that it could be filled in and it is not necessary that it should be filled in by the drawer himself or it could be under the handwriting of drawer himself or other person. 6. On the other hand, in support of the impugned order, the learned counsel for the respondent has relied upon the decision in T. Nagappa Vs. Y.R. Muralidhar, AIR 2008 Supreme Court 2010. In the case referred to above, there was defence of misuse of cheque by the complainant and the application was filed to call for expert opinion. It was held that opportunity must be granted to accused for adducing evidence. 7. Y.R. Muralidhar, AIR 2008 Supreme Court 2010. In the case referred to above, there was defence of misuse of cheque by the complainant and the application was filed to call for expert opinion. It was held that opportunity must be granted to accused for adducing evidence. 7. Reliance was also placed upon the decision in Kalyani Baskar (Mrs.) Vs. M.S. Sampoornam (Mrs.), (2007) 2 Supreme Court Case 258, where the prayer was made for comparison of the signatures on the cheque alongwith the admitted signatures. It was held that the accused could not be convicted without an opportunity being given to her to present her evidence. Denial of the said opportunity would lead to an unfair trial. 8. In both the decisions referred to above, the signatures of accused had not been admitted on the cheque, whereas in the present case, the signatures are not disputed by the accused, who has admitted his signatures. The dispute is only in regard to the amount and as held in the above two cases, in so far as the figures are concerned, these cannot be sent for comparison and it is for the accused to prove as to whether the amount was filled by him or not. The application has been filed at belated stage after recording the statement of accused under Section 313 Cr.P.C., I am of the opinion that the impugned order is not sustainable in the eyes of law and as such, the present petition is allowed and the impugned order is set side. The case shall go back to the learned trial Court, who shall dispose of the case on the basis of the evidence led by both the parties. Parties through their learned counsel are directed to appear before the learned trial Court on 18th April, 2011. A copy of the order alongwith the record be sent to the learned trial Court. 9. In view of the above, the petition stands disposed of, so also the pending miscellaneous application(s), if any. Interim order shall also stand vacated.