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2012 DIGILAW 103 (PNJ)

V. K. Dhir Hosiery Works v. R. L. Nauhria

2012-01-18

RAKESH KUMAR GARG

body2012
Rakesh Kumar Garg, J.:— The petitioners, who are facing trial under Section 138 of the Negotiable Instruments Act, 1881, have filed the instant revision petition challenging the order dated 24.5.2011 of the Judicial Magistrate 1st Class, Ludhiana whereby their prayer for seeking permission to examine Handwriting Expert in defence evidence was rejected. 2. As per the averments made, the respondent filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the petitioner-V.K. Dhir stating that he had given a loan of Rs.2,00,000/- to the petitioner for business purposes and in order to discharge his legal liability, petitioner issued Cheque No.296608 dated 21.4.2003 for Rs.2,00,000/- drawn on Indian Overseas Bank, Civil Lines, Ludhiana in favour of the complainant. It was further averred that the said cheque was dishonoured and returned by the banker with the remarks “No account and title of the account differs”. Thus, it was prayed that the petitioner be punished in accordance with law. 3. In the reply, the petitioner admitted his signatures on the disputed cheque however, he took a categoric stand that no loan of amount was given by the respondent-complainant to him and in fact the alleged cheque was misused and manipulated by the complainant. According to the petitioner, to prove his defence, he moved an application seeking permission of the Court to examine Handwriting Expert, who would inspect the file and take photographs of the cheque containing his signatures and other writings on the cheque and prayed that the application be allowed so that his defence may be proved by cogent and credible evidence and the presumption under the Negotiable Instruments act operating against him can be rebutted. 4. The said application was contested by the complainant by filing reply on the ground that the said application has been filed only to delay the proceedings of the case and that the petitioner had admitted his signatures on the cheque and therefore, no useful purpose will be served by allowing application. 5. While dismissing the application filed by the petitioner vide impugned order dated 24.5.2011, the trial Court observed as under:- “I have heard the learned counsels for both the parties and have also carefully gone through the record of the file. The applicant/accused has alleged that the cheque in question was never filled or issued by him. 5. While dismissing the application filed by the petitioner vide impugned order dated 24.5.2011, the trial Court observed as under:- “I have heard the learned counsels for both the parties and have also carefully gone through the record of the file. The applicant/accused has alleged that the cheque in question was never filled or issued by him. He further alleged that the entire body of the cheque has been filled in by the complainant himself. So, in order to bring the truth about the fact that as to whether the signatures and writing on the cheque is of the applicant or not, the applicant/accused wants to compare the disputed writing and signatures through handwriting expert. The perusal of file shows that there is no dispute with regard to the issuance of the cheque in question by the accused. Accused has nowhere denied his signatures on the cheque in question while recording his statement under section 313 Cr.P.C that he has never issued or signed the cheque in question nor the body of the cheque has been filled by him. Earlier, accused had moved an application for sending the cheque in question to the Director Forensic Science Laboratory for determining the age of the writing of the body of the cheque in this case, which was dismissed on 1.11.2010. Thereafter, accused had moved another application directing the complainant to appear in person and to give his specimen handwriting in the court in this case and the same was also dismissed on 1.11.2010. During the defence evidence, the accused has filed the present application. It appears that the accused is intentionally and deliberately delaying the proceedings in the present case. The accused has already taken numerous opportunities for his defence evidence but he has failed to conclude his entire evidence nor any list of witnesses has been filed by him as yet. It is the settled law that when the signatures and issuance of cheque in question is admitted, then the same need not be sent to the expert. Accordingly, the contention of the applicant/accused that the expert be engaged for comparison the signatures and other writings on the cheques, is not tenable and is liable to be discarded. It appears that the present application has been filed just to delay the proceedings of this case. Accordingly, the contention of the applicant/accused that the expert be engaged for comparison the signatures and other writings on the cheques, is not tenable and is liable to be discarded. It appears that the present application has been filed just to delay the proceedings of this case. The only dispute is regarding the fact that whether the cheque were filled by the accused or somebody else. I am supported in my view by 2007(2) Criminal Court Cases 897 (Kerala) wherein it has been held that cheque filled up by some other person putting the date and amount-drawer cannot get absolved of the liability under Section 138 of the Act.” Even if opinion of the Handwriting Expert is taken it will not have any bearing on the present complaint as the accused has not disputed his signatures on the cheque. Rather it would result in unwarranted delay in disposal of the present complaint. Accordingly, I find no justification for allowing the instant application and the same is hereby dismissed.” 6. According to the learned counsel for the petitioner, he has a right to fair trial and defend himself and therefore, an opportunity must have been granted to him for adducing evidence in rebuttal thereof to the presumption raised under Section 20 of the Negotiable Instruments Act in favour of the holder of the cheque. Learned counsel has further submitted that there is a distinction between admission of signatures and admission of execution of the cheque and thus, certainly it is right of the petitioner to contend that a blank cheque was mis-utilized by the payee and such right cannot be taken away by such mere admission of signatures and therefore, the petitioner could have been given an opportunity to prove his defence by calling the expert witness as prayed. In support of his case, counsel for the petitioner has relied upon judgment of the Hon’ble Supreme Court in T. Nagappa versus Y.R. Muralidhar 2008(2) Criminal Court Cases 801 (S.C.). 7. I have heard learned counsel for the petitioners and have perused the impugned order and averments made in this petition. 8. There is no dispute with the proposition of law as settled by the Hon’ble Supreme Court in T. Nagappa’s case (supra) as relied upon by the counsel for the petitioners. However, the facts of the instant case are entirely different. 8. There is no dispute with the proposition of law as settled by the Hon’ble Supreme Court in T. Nagappa’s case (supra) as relied upon by the counsel for the petitioners. However, the facts of the instant case are entirely different. It is the categoric stand of the petitioner that no amount of loan was given by the complainant to him and the said cheque was mis-utilized and manipulated by him. However, there is not an iota of evidence on record to support the aforesaid contention of the petitioner to prove that the alleged cheque has been misused and manipulated by the respondent. The contention of the petitioner that expert witness to call for comparison of the handwritings on the cheque is of no use to him as in the absence of any other evidence, the said fact cannot prove that the cheque was manipulated by the respondent-complainant. Simply because the cheque was filled up by some other person, the petitioner cannot get absolved of the liability of under Section 138 of the Act. Even if, opinion of Handwriting Expert is taken, it will not have any bearing on the present complaint as the petitioner has not disputed his signatures on the cheque. Thus, this Court finds no reason to interfere in the well reasoned order of the trial Court. Dismissed.