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Madhya Pradesh High Court · body

2013 DIGILAW 566 (MP)

Umesh Tiwari v. Chandramohan Bansal

2013-04-29

M.K.Mudgal

body2013
ORDER Mudgal. J. 1. The petitioner has filed this petition under section 482 of the CrPC against the order dated 15.3.2010 passed by the Court of Ist ASJ, Vidisha (Shri BK Dube) in Cr.Revision No. 25 of 2010 affirming the order dated 6.1.2010 passed by the Court of JMFC (Shri Jaffar Iqbal) in Cr.Case No. 2782 of 2006 rejecting the application filed by the accused for calling Bholaram and Sanjay Tiwari as defence witnesses and hand writing expert Pankaj Agrawal for getting the writing on the cheques examined in his defence. 2. In brief, the facts of the case are that, a complaint under section 138 of the Negotiable Instruments Act has been filed by the respondent/complainant against the petitioner/accused regarding three cheques given by him to the complainant which were returned by ICICI Bank for payment as there was no sufficient fund in the account of the petitioner/accused. The demand note for the payment of the cheques amount was given by the complainant to the accused but the accused failed to pay the amount as demanded by the complainant. Therefore the said complaint has been filed against the accused. 3. Denying the allegation of the complaint, the accused has claimed that the disputed cheques were not given by him to the complainant. The accused further states that no grain was purchased by him from the complainant as alleged in paras 3, 4 and 5 of the complaint. The accused has taken a defence that the aforesaid cheques were given by him to Bhola Ram and Sanjay Tiwari in his business transaction. The cheques were misused by the complainant in connivance with Bhola and Sanjay Tiwari. The statement of accused under section 315 of CrPC was recorded on 6.1.2010. On the same day, an application for calling aforesaid witnesses was filed by the accused. The application was rejected vide order dated 6.1.2010 on the ground that the delay has been caused by the accused in trial. The propriety of the aforesaid order was challenged in Criminal Revision No. 25 of 2010 which was rejected by the Court of Ist ASJ, Vidisha vide order dated 15.3.2010 affirming the order of lower Court. 4. The application was rejected vide order dated 6.1.2010 on the ground that the delay has been caused by the accused in trial. The propriety of the aforesaid order was challenged in Criminal Revision No. 25 of 2010 which was rejected by the Court of Ist ASJ, Vidisha vide order dated 15.3.2010 affirming the order of lower Court. 4. The petitioner’s counsel submits that no delay was caused on the part of accused in the trial because, the statement of accused under section 315 of CrPC was recorded on 6.1.2010 and on the same date, the application was filed by the accused without any delay for calling the witnesses in his defence. Learned counsel has further submitted that accused in his defence has elaborately stated that the disputed cheques were not given to the complainant instead they were given to Bhola Ram and Sanjay Tiwari, Besides the accused has also deposed in his statement that the writing on the cheques was not in his handwriting, except the signatures and the cheques amount. The learned counsel has further contended that the orders of lower Court as well as the revision Court are contrary to law as the accused should not have been deprived to adduce evidence in his defence to rebut the complainant’s evidence. Learned counsel for the petitioner has placed reliance on the judgment of this Court reported as 2009 (III) MPWN 117=2009 (III) MPJR 65 (Mukesh Goyal v. Yasin Patel). 5. Per Contra, opposing the submissions made on behalf of the accused, the learned counsel for the respondent submits that the examination of accused under section 313 of CrPC was carried out on 24.9.2009 and the case was fixed for accused’s defence evidence on 10.10.2009 but on the fixed date, no application was filed on behalf of the accused for calling the witness in his defence. He further submitted that after recording of his statement under section 315 of CrPC, the application for calling alleged defence witness was filed malafidely on 6.1.2010 for causing delay in trial. He has further submitted that considering the facts, the application was rejected by the trial Court on sufficient ground and the order of learned trial Court is well reasoned which was affirmed by the revisional Court and there in no ground to interfere in the aforesaid orders by this Court invoking extra ordinarg jurisdiction envisaged under section 482 of CrPC. 6. 6. Arguments of learned counsel for the parties were considered, indisputably, the statement of accused under section 315 of CrPC was recorded on 6.1.2010 and on the same day, the application was filed by the accused for calling defence witnesses and so it cannot be inferred that the application was filed by the accused for causing delay in trial. The order of rejection passed by learned trial Court on the ground of causing delay by the accused does not appear to be correct. Moreover, the accused has specifically deposed in his statement regarding his defence stand as stated earlier. To prove his defence, the opportunity should have been given to the accused for producing the defence witnesses. So far as calling of handwriting expert is concerned, in this case, in the opinion of this Court, it is not necessary for the just decision of this case because for validity of the cheques, it is not mandatory that a cheque must be written in his hand by a drawer of the cheque. If the cheque is written by another person and signed by its drawer, the cheque would be considered valid. Hence, the prayer of the accused for calling handwritting expert for examination of the writing on the cheques is disallowed as signatures on the cheques and writing in respect of the amount in his hand has not been disputed by the accused and to this extent, the order of lawer Court as well as revisional Court are affirmed. So far as the judgment in the case of Mukesh Goyal (supra) is concerned, it does not help the accused/petitioner as the facts of the said case are different to the present case. However, the request for calling witnesses Bholaram and Sanjay Tiwari seems to be proper. 7. The order of lower Court as well revisional Court refusing the aforesaid prayer are found contrary to law because, the accused has been deprived from producing his defence evidence. All the same, no delay was caused by the accused in filing application for calling the defence witnesses. 7. The order of lower Court as well revisional Court refusing the aforesaid prayer are found contrary to law because, the accused has been deprived from producing his defence evidence. All the same, no delay was caused by the accused in filing application for calling the defence witnesses. In such a situation, this Court deems it fit to invoke extraordinary jurisdiction envisaged under section 482 of CrPC for issuing proper directions: “Considering the above facts allowing the petition partly, setting aside the order of trial Court as well as revisional Court as stated above, it is ordered that the accused is permitted to produce witnesses Bholaram and Sanjay Tiwari in his defence. Both the witnesses are not public servants, hence, accused will ensure presence of both the witnesses before the trial Court. The trial Court will fix a date for defence evidence. On the fixed date, the accused will secure presence of witnesses and no unnecessary adjournment would be granted for the same.” 8. With the aforesaid direction, this petition stands disposed of. 9. A copy of this order be sent to the trial Court as well revisional Court for information and compliance.