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Madhya Pradesh High Court · body

2013 DIGILAW 981 (MP)

Suresh Chandra Bindal v. Nand Kishore Verma

2013-08-20

Brij Kishore Dube

body2013
ORDER 1. This petition under section 482 of CrPC is preferred by the petitioner herein/complainant against the order dated 25.7.2013 passed by IV Additional Sessions Judge, Gwalior in Criminal Revision No.203/2013 affirming the order dated 23.5.2013 passed by learned Judicial Magistrate First Class, Gwalior in Criminal Case No.16974/2010 whereby an application under section 243 of CrPC read with section 45 of the Evidence Act filed by the respondent herein/accused for permission to get the disputed writing examined by handwriting expert has been allowed. 2. Brief facts of the case are that the petitioner herein/complainant filed a complaint under section 138 of the Negotiable Instruments Act against the respondent herein/accused. During the course of trial, the accused filed an application under section 243 of CrPC read with section 45 of the Evidence Act for examination of the writing on disputed cheque by the handwriting expert. The application was allowed vide order dated 23.5.2013 by the learned Judicial Magistrate First Class, Gwalior. Being aggrieved thereof, the complainant filed a Criminal Revision bearing No.203/2013. The Revisional Court vide the impugned order dated 25.7.2013 dismissed the revision, hence, this petition is preferred by the petitioner. 3. Learned counsel for the petitioner submits that the accused in his reply to the notice admitted the liability and stated that due to financial crises he could not make payment, therefore, now it is not necessary to examine the writing on cheque by the handwriting expert. The application has been filed only for causing delay in concluding the trial. The learned Courts below have not justified in allowing the request of the accused. Learned counsel placed reliance upon the following decisions:- (i) Kochukuru v. State of Kerala and another, 2008(2) DCR (Dishonour of Cheque Reporter) 504; (ii) Sathyamoorthy v. A.C. Palanisamy, 2010 (1) DCR 86; and (iii) Manoj Sharma v. Anil Aggarwal, 2012 (2) DCR 117. 4. In the case of Kochukuru (supra), the Kerala High Court held that it is not any and every request to forward the cheque to the expert which can be blindly accepted by the Court. The Court has to be satisfied that the request is a bona fide one. In Sathyamoorthy (supra), the accused filed an application for taking the assistance of a handwriting expert to compare the disputed signature in the cheque with that of his admitted signature. The said application was dismissed. The Court has to be satisfied that the request is a bona fide one. In Sathyamoorthy (supra), the accused filed an application for taking the assistance of a handwriting expert to compare the disputed signature in the cheque with that of his admitted signature. The said application was dismissed. Subsequently, another application was filed by the same applicant and it was allowed on the ground that an opportunity to the accused should be given. The Madras High Court in that situation held that once the Court adjudges the cause then, subsequently, it should not be adjudged. The order granting permission to obtain opinion of handwriting expert is erroneous. In Manoj Sharma (supra), the Delhi High Court observed that while considering the application under section 243 (2) of CrPC for expert opinion, the Court must assess the pros and cons and facts and circumstances of the case. 5. In the light of the aforesaid dictum, if consider the case in hand, it is revealed that the accused sought permission to get the disputed writing in the cheque be examined by an handwriting expert on the ground that on 20.9.2010, he neither signed on the disputed cheque nor filled up the contents of the cheque and the blank cheque was misused by filling up the blanks therein by the complainant. The relevant para of the application reads as under:- **¼4½ ;g fd] vkjksih dk cpko gS fd ifjoknh }kjk vkjksih ls 2010 ds 3 o”kZ iwoZ mDr dksjk pSd iRrh ds O;olk; esa /kjksgj jkf’k ds :i esa ek= gLrk{kjh vkjksih ls izkIr fd;k Fkk rFkk mDr pSd dk cn;kUrhiwoZd nq#i;ksx dj ifjoknh }kjk mDr pSd ls Hkqxrku izkIr djus dk iz;kl fd;k x;k gS rFkk ifjoknh }kjk 2010 ds 3 o”kZ iwoZ izkIr pSd ij Loa;Hkw vFkok fdlh vU; ls viuk uke jkf’k o frfFk vafdr djkbZ xbZ gS tcfd mDr pSd ij tks gLrk{kj gS og o”kZ 2010 ds 3 o”kZ iwoZ ds gSa rFkk tks frfFk 20-9-2010 pSd ij vafdr gSa mDr fnukad dks ;k mDr o”kZ es dksbZ gLrk{kj izn’kZ ih- 1 ij ugha fd;s x;ss gSa rFkk vkjksih us ifjoknh ls fdlh Hkh izdkj ls dksbZ 6]00]000@& #i;s dh jkf’k Å/kkj izkIr ugha dh gS vkSj u gh mDr rFkkdfFkr jkf’k ds fof/kd Hkqxrku dk dksbZ nkf;Ro vkjksih dk gS rFkk ifjoknh }kjk izsf”kr lwpuk i= dk tokc izsf”kr djus ds mijkUr tc vkjksih us ifjoknh ls laidZ fd;k Fkk rc ifjoknh us vkjksih dks ;g vk’oklu fd;k Fkk fd mlus mDr pSd QkM+dj Qsad fn;k gS vkSj og mDr pSd ds laca/k esa dksbZ dk;Zokgh ugha djsxk bl dkj.k ifjoknh us rRle; dksbZ dk;Zokgh ugha dh Fkh ysfdu tc U;k;ky; ls mDr izdj.k esa mifLFkfr ckor~ izkFkhZ dks tkudkjh gqbZ vkSj tc izkFkhZ mDr izdj.k esa mifLFkr gqvk rc mls Kkr gqvk fd ifjoknh }kjk mDr pSd ds laca/k esa gh izdj.k is’k fd;k x;k gS bl ij vkjksih }kjk ifjoknh ds fo#) l{ke U;k;ky; esa pSd dh dwVjpuk o /kks[kk/kM+h ds laca/k esa dk;Zokgh izkjEHk dh tk pqdh gSA** 6. The learned trial Court after considering the submissions of the learned counsel for the parties and facts of the case, allowed the application which was affirmed by the Revisional Court. 7. Taking into consideration all the material aspects of the case, including the reasons assigned by the learned Courts below, no illegality or infirmity is found in the impugned orders, hence, no interference in exercise of power under section 482 of CrPC is called for. This petition is devoid of merit and is, therefore, dismissed.