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2014 DIGILAW 1730 (RAJ)

Babu Lal v. State of Rajasthan

2014-10-28

SANDEEP MEHTA

body2014
JUDGMENT : Sandeep Mehta, J. The instant misc. petition has been preferred on behalf of the petitioner accused assailing the orders dated 1.2.2013 and 18.5.2013 passed by the learned Chief Judicial Magistrate, Rajsamand in Complaint Case No.18/2003 whereby the learned Chief Judicial Magistrate directed the examination of the cheques in dispute by the FSL after taking the specimen signatures of the petitioner accused. 2. Facts in brief are that the respondent No.2 Ganesh Lal filed a complaint against the petitioner in the court of the learned Chief Judicial Magistrate, Rajsamand for the offences under Sections 465, 467, 471, 420 and 406 IPC with the allegations that the petitioner forged the cheques No.12714 and 11164 of the complainant's account and misutilised the same. The complaint was filed in the court on 7.10.2004. The learned trial Court registered the complaint and directed proceedings under Sections 200 and 202 Cr.P.C. By order dated 2.5.2008, the matter was sent to the Police Station Rajnagar for inquiry. The Investigating Officer submitted an inquiry/investigation report in the court on 5.11.2008 observing that the complainant has alleged that the cuttings were made in the cheques and the names etc. were filled in by the accused. This fact could be verified only by having the cheques examined through the FSL. Vide order dated 28.1.2012, the SHO Police Station Rajnagar informed the court that the cheques were available in the court in some other proceedings and thus, FSL examination could not be conducted. Upon receiving the said information, the trial Court dated 28.1.2012 directed the Investigating Officer to procure the original cheques from the court concerned so that the same could be forwarded to the FSL. The complainant Ganesh Lal filed an application in the trial Court stating therein that the matter was pending for the last 4 years for procuring the FSL report. The Investigating Officer had not forwarded the cheques to the FSL and thus, the cheques in question be summoned and be forwarded to the FSL. The trial Court vide order dated 1.2.2013 accepted the prayer and directed that the cheques in question be summoned. By order dated 18.5.2013, the learned trial Court instructed the SHO Police Station Rajnagar to procure the specimen signature of Babu Lal the petitioner and Hastimal Chaplot and thereafter, forward the specimen signatures along with the cheques in question to the FSL for comparison by the handwriting expert. By order dated 18.5.2013, the learned trial Court instructed the SHO Police Station Rajnagar to procure the specimen signature of Babu Lal the petitioner and Hastimal Chaplot and thereafter, forward the specimen signatures along with the cheques in question to the FSL for comparison by the handwriting expert. It is relevant to mention here that the petitioner Babu Lal had filed a complaint under Section 138 of the N.I. Act on 2.11.2004 in relation to the same cheques No.12714 and 11164 against the respondent No.2 Ganesh Lal. A Civil Suit was also instituted by the petitioner for the amount of the cheques from Ganesh Lal on 22.8.2007. The complainant respondent No.2 while filing a written statement in the said civil suit mentioned about the pendency of the criminal case in additional pleas made at page 4 of the written statement. He filed an application under Section 45 of the Evidence Act in the aforesaid civil suit and requested that both the cheques be sent to the FSL for comparison. The Civil Court rejected the application vide order dated 5.4.2010. Thereafter, the respondent No.2 complainant filed another application under Section 45 of the Evidence Act before the Civil Court praying that the opinion of the expert be obtained in respect of the signatures of the writings on the cheques in question. The Civil Court rejected the said prayer by order dated 18.9.2013. The complainant preferred a writ petition No.12097/2013 against the said order and this Court vide order dated 1.10.2013 dismissed the said writ petition in limine. 3. Shri S.P.Sharma, learned counsel for the petitioner submitted that the complainant has played fraud with the court and concealing material facts i.e. the pendency of the civil suit and the passing of the adverse orders by the Civil Court, he managed to pursuade the court to direct forwarding of the cheques in question to the FSL without any justification. He contended that neither was the court apprised about the pendency of the complaint filed against him under Section 138 of the N.I. Act nor about the civil suit which was being contested by the complainant. He submitted that the complainant also concealed the fact that a prayer similar to the one made before the criminal court was also made before the civil court which proved unsuccessful. He submitted that the complainant also concealed the fact that a prayer similar to the one made before the criminal court was also made before the civil court which proved unsuccessful. Concealing the fact of the rejection of such application, the complainant has misused the process of court by filing the application for forwarding the cheques in question to the FSL and fraudulently misled the court into accepting the same. He, therefore, prayed that the impugned orders as well as all the proceedings of the complaint filed by the respondent No.2 complainant before the trial Court deserves to be quashed. 4. Per contra, Shri Sudhir Saruparia, learned counsel appearing for the complainant respondent No.2 feebly attempted to support the impugned orders passed by the learned trial Court. However, he candidly admitted that the fact regarding the pendency of the civil cases and criminal case under Section 138 of the N.I. Act against the complainant, in relation to the very same cheques. It was not disputed that the fact regarding the prayer for forwarding the cheques to the FSL rejected by the civil court was not disclosed to the criminal court while making the prayer for forwarding the cheques to the FSL. 5. I have heard the arguments advanced by the learned counsel for the parties and have gone through the impugned orders as well as the other material available on record. 6. On the face of the record, it is apparent that the complainant respondent No.2 is guilty of concealing material facts and misusing the process of criminal court for procuring a favourable order. The same two cheques, which are the subject matter of the complaint preferred before the Chief Judicial Magistrate are also the subject matter of the two litigations preferred by the petitioner. The first being a complaint under Section 138 of the N.I. Act and the other being a civil suit for recovery of Rs.6,80,000/- pending in the court of District Judge, Rajsamand. The respondent No.2 is a party to both the proceedings. At no point of time in any of the courts, the complainant has disputed his signatures on the cheques in question. Having failed in his attempt to procure an order of the civil court for forwarding the cheques to the FSL, the complainant made mis-representations before the criminal court and filed the application for forwarding the cheques to the FSL by concealing material facts. Having failed in his attempt to procure an order of the civil court for forwarding the cheques to the FSL, the complainant made mis-representations before the criminal court and filed the application for forwarding the cheques to the FSL by concealing material facts. The learned trial Court also exercised its discretion in a perfunctory fashion. The fact of the cheques having been filed in another litigation was known to the court as per the report submitted by the Police. The Chief Judicial Magistrate without ascertaining as to the nature of the proceedings in relation whereto the cheques were submitted in the competent court acted in a mechanical fashion and directed that the cheques be procured from the court and be forwarded to the FSL for examination. As per Rule 181 of the General Rules (Civil), no record shall be issued except on the requisition of a Civil, Criminal or Revenue Court, of a Tribunal of the Government, of the Board of Revenue, of Commissioner of Excise and of the Inspector General of Registration and Stamps, and then only on an order of the Presiding Officer. In all other cases, before a record is issued the orders of the High Court shall be taken on the subject. Thus, it is evident that only the Presiding Officer of the court concerned can direct issuance of the record. Meaning thereby that the court in which the cheques in question were submitted was only competent to direct issuance of the cheques to the Investigating Officer. In any other cases, before the record can be issued, the order of the High Court is necessary. 7. Furthermore, as has already been noted above, the prayer made by the complainant to forward the cheques in question to the FSL was turned down by the civil court twice. The later order dated 18.9.2013 passed by the learned District Judge has also been affirmed by this Court in above mentioned writ petition. In this background, this Court feels that no justification whatsoever exists on the record to permit the cheques in question to be forwarded to the FSL for comparison. Section 118 of the N.I.Act raises a presumption in favour of the holder of the cheques in due course. If a blank postdated cheque is provided to the holder, then he has a right to fill in the blanks and present the same to the bank for encashment. Section 118 of the N.I.Act raises a presumption in favour of the holder of the cheques in due course. If a blank postdated cheque is provided to the holder, then he has a right to fill in the blanks and present the same to the bank for encashment. The person, who hands over blank cheques acquiesces that the holder would be at liberty to fill the same and present it to the bank for encashment. The signatures of Ganesh Lal on the cheques have not been disputed by him at any point of time. Thus, even if the blanks on the cheques were filled in by the holder i.e. Babu Lal, then he had every right to present the same in the bank for encashment after filling the blanks. 8. From the discussion made above it is evident that the complainant has blatently misused the process of criminal court for procuring a favourable order. This Court feels that cost deserves to be imposed on this account. 9. Resultantly, the misc. petition deserves to be accepted and is hereby allowed. The impugned orders dated 1.2.2013 and 18.5.2013 passed by the learned Chief Judicial Magistrate, Rajsamand in Complaint Case No.18/2003 are quashed. 10. A cost of Rs.5000/- is imposed on the complainant Ganesh Lal to be deposited in the trial Court within a period of two months from today. He shall be permitted to prosecute his complaint only upon depositing the cost amount. Petition allowed.