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2011 DIGILAW 1354 (RAJ)

Girdhari Pushkarna v. State of Rajasthan

2011-07-12

GOVIND MATHUR

body2011
JUDGMENT (1) THE petitioner is facing criminal charges before the court of Special Judicial Magistrate (Negotiable Instruments Act Cases) No.1, Udaipur purported to be under Section 138 of the Negotiable Instruments Act. (2) HE is said to have issued a cheque in favour of respondent Lalit Kumar Jain for a sum of Rs.4,50,000/- on 5.7.2006. The cheque aforesaid on depositing in the bank was allegedly returned unpaid. A complaint then was filed by the respondent contending that the petitioner committed an offence under Section 138 of the Negotiable Instruments Act. During the course of trial statement of the respondent No.2 was recorded, wherein as per the petitioner, he stated that except the signatures the other contents of the cheque concerned are in the handwriting of his son Manish Jain. An application then was filed by the petitioner as per provisions of Sections 45 and 73 of the Indian Evidence Act making a demand for getting opinion of the handwriting expert with regard to the contents of cheque other than the signatures. Suffice it to mention that the petitioner without any ambiguity is admitting that the signatures on the cheque are his own. As such, the dispute sought to be raised is with regard to the handwriting pertaining to the other contents only. (3) LEARNED trial court by order dated 21.1.2011 rejected the application on the count that on acceptance of signatures the other contents of the cheque are immaterial in present set of facts of the case. A revision petition preferred before the learned Sessions Judge, Udaipur questioning validity, correctness and propriety of the order dated 21.1.2011 also came to be rejected on 27.1.2011, hence this misc. petition under Section 482 Cr.P.C. is preferred. The submission of counsel for the petitioner is that an opportunity should have been granted to the petitioner for adducing evidence by calling the opinion of handwriting expert. Reliance is also placed by counsel for the petitioner upon the judgment of Hon'ble Supreme Court in the case of T.Nagappa v. Y.R.Murlidhar, reported in AIR 2008 SC 2010 . The submission of counsel for the petitioner is that an opportunity should have been granted to the petitioner for adducing evidence by calling the opinion of handwriting expert. Reliance is also placed by counsel for the petitioner upon the judgment of Hon'ble Supreme Court in the case of T.Nagappa v. Y.R.Murlidhar, reported in AIR 2008 SC 2010 . In the case of T.Nagappa (supra) a claim was made to refer the cheque in question for examination by Forensic Science Laboratory for determining the age of signature with contention that the same was obtained by the respondent in that case somewhere in the year 1999 as a security for hand loan of Rs.50,000/- that had been paid back, but instead of returning the cheque the same was misused by entering a huge amount. (4) IN the present case no such defence is at all taken by the petitioner. It is pertinent to note that before initiating proceedings as per provisions of Section 138 of the Negotiable INstruments Act a notice was sent by the respondent complainant to the petitioner but no reply to that was given. Not only this, in the application dated 20.1.2011 no reason is given as to why opinion of the handwriting expert is essential in present case. For ready reference the contents of the application dated 20.1.2011 is quoted below:- ...[VERNACULAR TEXT OMMITED]... If no reason is available to the petitioner for getting opinion of the handwriting expert then no direction in this regard could have been given. There must be some foundation for seeking such an opinion. The case in hand is lacking foundation for calling opinion of handwriting expert. The petitioner did not care even to prescribe any reason in the application dated 20.1.2011. The trial court, thus, rightly rejected the application concerned. For the reasons above this misc. petition is having no merit, therefore, the same is dismissed.