Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 1936 (RAJ)

Banwarlal Kumawat v. State of Rajasthan

2013-11-07

NISHA GUPTA

body2013
JUDGMENT 1. - This Misc. Petition under Section 482 Cr.P.C. has been filed against the order dated 7.1.2009 whereby the application under Section 73 of the Evidence Act has been rejected. 2. The short facts of the case narrated in the petition are that complainant respondent No. 2 lodged a complaint under Section 138 of the Negotiable Instructions Act against the present petitioner and the contention of the present petitioner was that cheque has been misused and complainant has taken the cheque from Rajesh Yadav and moved an application under Section 73 of the Evidence Act which was rejected. Petitioner filed the revision which was also rejected, hence this petition. 3. The contention of the present petitioner is that he has a right to defend and if cheque and the deposit slips were not sent to the expert opinion, his right to defence would be affected prejudicially. The contention of the present petitioner is that complainant has stated that cheque (Ex. P/2) and deposit slip (Ex.P/1) have been written by different persons whereas bare perusal of both could show that both have been written by the same person hence a comparison is essential and reliance has been placed on T. Nagappa v. Y.R. Muralidhar, AIR 2008 SC 2010 wherein it has been held: "When a contention has been raised that the complainant has misused the cheque, even in a case where a presumption can be raised under Section 118(a ) or 139 of the said Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. As the law places the burden on the accused, he must be given an opportunity to discharge it. An accused has a right to fair trial. He has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognised by the Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure." 4. Further reliance has been placed on Kalyani Baskar (Mrs) v. M.S. Sampoornam (Mrs), 2007 1 SCC (Cri) 577 wherein it has been held: "The appellant is entitled to rebut the case of the respondent and if the document viz. Further reliance has been placed on Kalyani Baskar (Mrs) v. M.S. Sampoornam (Mrs), 2007 1 SCC (Cri) 577 wherein it has been held: "The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the hand-writing expert has deprived the appellant of an opportunity of rebutting it." 5. There cannot be any quarrel to the fact that the applicant is entitled to defend his case but here in the present case, the applicant has admitted the fact that cheque contains his signature whereas in Kalyanai Bhaskar (supra), the accused has specifically denied the signatures on the cheque and hence, it was found essential to send the document for the opinion of hand-writing expert. Here when the petitioner had admitted his signature on cheque, opinion of hand writing expert on the same is futile exercise. In T. Nagappa (supra), the dispute was in regard to age of the writing on cheque. In the present case no such controversy has been raised by the applicant. The only controversy which has been raised by the applicant is that whether cheque and deposit slips are written by one person or different persons. The answer of it whether in affirmative or negative will not affect the merits of the case as signatures on the cheque are admitted by the petitioner and respondent has also drawn the attention towards the provisions of Section 20 of the Negotiable Instruments Act and his contention is that the complainant is the holder in due course. 6. In the light of the above, the court below was right in rejecting the application and otherwise also under Section 73 of the Evidence Act, power of comparison of the documents lies with the Court and if at stage of the adjudication, the courts deems it fit to compare the documents, the Court is competent to do so. 7. 6. In the light of the above, the court below was right in rejecting the application and otherwise also under Section 73 of the Evidence Act, power of comparison of the documents lies with the Court and if at stage of the adjudication, the courts deems it fit to compare the documents, the Court is competent to do so. 7. The counsel for the appellant has relied upon State (Delhi Administration) v. Pali Ram, (1979) 2 SCC 158 wherein it has been advised that a judge should not take upon himself the task of comparing the admitted writing with the disputed one but the Apex Court has also made it clear that courts are empowered under Section 73 of the Evidence Act to compare the writing in the interest of justice. Hence under Section 73 of the Evidence Act power vests with the court below and the court below is competent to exercise such powers, if occasion so arises. 8. In the light of the above, no infirmity is found in the impugned orders. The petition is liable to be dismissed and is dismissed. *******