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2012 DIGILAW 1275 (PNJ)

Surender Kumar Sharma v. Rajesh Dagar

2012-09-24

VIJENDER SINGH MALIK

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JUDGMENT Mr. Vijender Singh Malik, J.: - Surender Kumar Sharma, the petitioner has brought this petition under the provisions of section 482 Cr.P.C. for setting aside the order dated 6.9.2012 (Annexure P5) passed by learned Additional Sessions Judge, Faridabad and the order dated 31.5.2012 (Annexure P4) passed by learned Judicial Magistrate Ist Class, Faridabad being illegal and void. 2. In a prosecution brought by Rajesh Dagar, the respondent against the petitioner for an offence punishable under sections 138 of the Negotiable Instruments Act,1881 (for short, “the Act), the petitioner has made an application for allowing the original cheque for expert opinion and accept the manuscript of the accused/applicant for comparing the same with the writing of the cheque. He has claimed that he did not fill the blanks of the cheque as is claimed by the complainant as also by Virender Dagar, CW-2. According to him, the complainant and Virender Dagar have falsely stated that the accused filled the cheque himself. According to him, the dispute between the parties is, therefore, on the question as to whether the accused had filled the complainant’s name and amount in figures and words with date in the cheque. He has further submitted that he wanted to bring to the notice of the court the true facts and for that purpose expert opinion of handwriting/manuscript expert was required. Hence, he has prayed that a handwriting expert may be appointed for the said purpose. 3. Taking reply to the application of the complainant, where the application is opposed, learned Judicial Magistrate Ist Class, Faridabad dismissed the said application vide order dated 31.5.2012. 4. The revision preferred by the accused could not find favour with learned Additional Sessions Judge, Faridabad, who has dismissed the revision only on the ground of non-maintainability holding that the impugned order is an interlocutory order against which, revision petition was not maintainable under section 397(2) Cr.P.C. 5. Learned counsel for the petitioner has contended that the order passed by learned Judicial Magistrate Ist Class on 31.5.2012 is not an interlocutory order. In this regard, he has placed reliance on a decision of Hon‘ble Supreme Court of India in K.K.Patel and another Vs. State of Gujarat and another 2000(2) R.C.R. (Crl.) 863 as well as a decision of this court and a decision of Hon‘ble Madras High Court in cases reported as Dr. Gurpreet Kaur and another Vs. In this regard, he has placed reliance on a decision of Hon‘ble Supreme Court of India in K.K.Patel and another Vs. State of Gujarat and another 2000(2) R.C.R. (Crl.) 863 as well as a decision of this court and a decision of Hon‘ble Madras High Court in cases reported as Dr. Gurpreet Kaur and another Vs. State of Punjab and another, [2008(2) Law Herald (P&H) 1234] : 2008 (2) R.C.R. (Crl.) 285 and Dinesh Dalmia Vs. State 2006 (4) R.C.R. (Crl.) 361. 6. The law on the point has been clearly laid down by Hon‘ble Supreme Court of India in M/s Bhaskar Industries Ltd. Vs. M/s Bhiwani Denim & Apparels Ltd. 2001 (4) R.C.R. (Crl.) 137 where the test to determine if an order is interlocutory order or not is laid down in the following terms:- “8. The interdict contained in Section 397(2) of the Code of Criminal Procedure (for short ‘the Code’) is that the powers of revision shall not be exercised in relation to any interlocutory order. Whether an order is interlocutory or not, cannot be decided by merely looking at the order or merely because the order was passed at the interlocutory stage. The safe test laid down by this Court through a series of decisions is this: If the contention of the petitioner who moves the superior court in revision, as against the order under challenge is upheld, would the criminal proceedings as a whole culminate? If it would, then the order is not interlocutory in spite of the fact that it was passed during any interlocutory stage.” 7. In this decision, the following observations of Hon‘ble Supreme Court of India in Madhu Limaye Vs. State of Maharashtra AIR 1978 SC 47 have been noticed with approval :- “An order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397(2).” 8. The application with the prayer for appointment of an handwriting expert for examining the document and comparing the same with the writing of the accused was dismissed by learned Judicial Magistrate Ist Class, Faridabad. Applying the above laid test, it is to be seen as to whether the proceedings would culminate if the plea of the accused was allowed. The application with the prayer for appointment of an handwriting expert for examining the document and comparing the same with the writing of the accused was dismissed by learned Judicial Magistrate Ist Class, Faridabad. Applying the above laid test, it is to be seen as to whether the proceedings would culminate if the plea of the accused was allowed. In my opinion, if the revision petition would have been allowed, the proceedings would not have concluded and, therefore, the order in question would be an interlocutory order against which revision did not lie. 9. In K.K.Patel’s case (supra), there was a prosecution of a public servant and he applied for his discharge on the ground that no prior sanction for prosecution was obtained. The petition brought by the accused was dismissed by the Magistrate with the rider that question of sanction would be considered after recording evidence. The order has been held not to be an interlocutory order because if the objection raised by the accused was upheld by the revisional court, the entire proceedings would have been terminated, which is not the position in the case before me. Had the plea of the accused in the case before me been accepted, the proceedings of the case would not have been terminated and, therefore, the order in question is interlocutory order. 10. The facts in Dr. Gurpreet Kaur’s case (supra), does not hold any parallel to the facts of this case. In that case, the order in question has been a summoning order issued by the Magistrate and it was held not to be an interlocutory order. The said order clearly shows that if the plea of the accused would have been accepted, the proceedings would have been terminated and, therefore, it was not an interlocutory order. Similar test has been laid down in Dinesh Dalmia’s case (supra). 11. For the aforesaid reasons, I find the impugned order to be an interlocutory order against which revision was not maintainable. In these circumstances, I do not find any fault with the order dated 6.9.2012 passed by learned Additional Sessions Judge, Faridabad and if the same is unassailable, the order dated 31.5.2012 passed by learned Judicial Magistrate Ist Class, Faridabad is immune from challenge. Consequently, the petition merits dismissal and is dismissed as such.