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2011 DIGILAW 1407 (RAJ)

Mohd. Sakir v. State of Rajasthan

2011-07-18

GOPAL KRISHAN VYAS

body2011
JUDGMENT 1. - The defects pointed out by the office are hereby overruled. Office is directed to register this revision petition.In this revision petition filed under Section 397 Cr.P.C., the petitioner has prayed for quashing order dated 28.4.2011 passed by the learned Additional District Judge (Fast Track) No. 2, Jodhpur; whereby, the application filed by the petitioner under Section 391 Cr.P.C. dated 16.8.2010 was rejected and prayer of the petitioner for sending documents to, the hand writing expert was rejected. 2. Learned counsel for the petitioner submits that a complaint was filed by non-petitioner No. 2 under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "Act of 1881"), in which it was alleged that the petitioner (accused) borrowed a sum of Rs. 2,00,000/- on 12.4.2007 from him and petitioner issued a post dated cheque dated 12.4.2008. Further it is alleged in the complaint that petitioner executed a written receipt in this connection and the cheque of Rs. 2,00,000/- was presented to the bankers of the petitioner, but the said cheque was returned by the bankers of the accused to the complainant with remarks "Drawer's signature (a) differs" and "Funds Insufficient". 3. After receiving the cheque from the banker of the petitioner, a notice was given by the complainant to the petitioner on 25.5.2008 through registered post, but no reply was received from the petitioner nor any amount was tendered within fifteen days, therefore, as per Section 138 of the Act of 1881, a complaint was filed, in which, allegation was levelled that petitioner had committed an office (sic offence) under Section 138 of the Act of 1881. 4. After trial, the learned trial Court vide judgment dated 19.6.2009 held that complainant has proved the case against the petitioner accused for offence under Section 138 of the Act of 1881 and convicted him for six months imprisonment, so also, to pay a fine of Rs. 2,00,000/- to the non-petitioner. 5. Being aggrieved with the judgment dated 19.6.2009, the petitioner preferred an appeal before the learned Sessions Judge, Jodhpur and the same was transferred to the Court of learned Additional District Judge (Fast Track) No. 2, Jodhpur. During pendency of the said appeal, the petitioner moved an. application under Section 391 Cr.P.C. for sending cheque and receipt to the writing exiting expert for examination. 6. During pendency of the said appeal, the petitioner moved an. application under Section 391 Cr.P.C. for sending cheque and receipt to the writing exiting expert for examination. 6. The appellate Court vide its judgment dated 28.4.2011 rejected the application filed by the petitioner on the ground that as per Section 73 of the Evidence Act, there is power left with the Court to peruse the documents and if in the opinion of the Court it appears that signatures are false then documents can be sent for examination to the hand writing expert. 7. Learned counsel for the petitioner submitted that the order impugned suffers from illegality in view of the judgments or various High Court, so also, while inviting attention of this Court towards the judgments reported in AIR 1928 PC 277 , Kesarbai v. Jethabai Jivan , AIR 1957 Allahabad 119, Bhawan Din v. Gouri Shaker & Anr. and AIR 1992 SC 2100 , Maharashtra v. Sukhdeo Singh & Anr. submitted that in view of the aforesaid adjudications the order impugned dated 28.4.2011 may kindly be quashed and appellate Court may kindly be directed to send the documents for examination to the hand writing expert. 8. I have considered the rival submissions made by learned counsel for the petitioner and perused Section 73 of the Evidence Act, which reads as under:- "73. Comparison of signature, writing or seal with others admitted or proved. - In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. [This section applies also, with any necessary modifications, to finger impressions.]" 9. Upon perusal of the above section, it appears that there is jurisdiction left with the Court to ascertain the correctness of the documents in dispute. 10. [This section applies also, with any necessary modifications, to finger impressions.]" 9. Upon perusal of the above section, it appears that there is jurisdiction left with the Court to ascertain the correctness of the documents in dispute. 10. Here in this case, before the trial Court no application was filed by the petitioner accused for sending the document. Meaning thereby, during trial it was not felt necessary by the petitioner accused to get examination of the documents through hand writing expert, but before the appellate Court after conclusion of trial, an application was filed under Section 391 Cr.P.C. for sending the said document for examinations. 11. I have perused Section 391 Cr.P.C. 12. Under Section 391 Cr.P.C. there is jurisdiction left with the appellate Court to take further evidence or direct it to be taken. But here in this case, after taking into consideration entire facts of the case, the appellate Court found that there is no difference in the signatures, therefore, the appellate Court refused to entertain the application filed by the petitioner under Section 391 Cr.P.C. 13. In may opinion, upon the given facts of this case, there is jurisdiction left with the Court to apply it mind and to take decision. Obviously, the learned appellate Court gave reasons for rejection of the application filed by the petitioner under Section 319 (sic 391) Cr.P.C. 14. The judgments citied by learned counsel for the petitioner are totally on different facts of the case, therefore, as per facts of this case, I am of the view that once the appellate Court exercised its jurisdiction not to allow the application filed under Section 391 Cr.P.C. by the petitioner, then it is not proper to interfere in the order. Further, no cogent reasons are brought to the notice of this Court, upon which, any order is required to quash the impugned order dated 28.4.2011. 15. In view of the above discussion, it is obvious that no error has been committed by the Additional District Judge (Fast Track) No. 2, Jodhpur in rejecting the application filed by the petitioner accused in the appeal. 16. Hence, this revision petition is hereby dismissed.Revision dismissed. *******