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2014 DIGILAW 825 (RAJ)

Miyan Commission Agent v. State of Rajasthan

2014-04-02

VIJAY BISHNOI

body2014
JUDGMENT : 1. This Criminal Misc. Petition under Section 482 Cr.P.C. has been filed by the petitioner against the order dated 10.3.2014 passed by the Additional Chief Judicial Metropolitan Magistrate, CBI Cases Jodhpur (hereinafter referred to as 'the Trial Court') in Original Case No. 476 of 2011, Shail Trading Company v. M/s. Miyan Commission Agent , whereby the application filed by the petitioner under Section 45 of Evidence Act has been rejected. 2. The Trial Court has rejected the said application of the petitioner while observing that the petitioner has not produced any documents in relation to his allegation that the cheque in question has been misused. It is also observed by the Trial Court that the petitioners has also not produced any document in relation to the other cases said to have been pending in respect of the cheque in question and, therefore, in such circumstances, there is no need to sent the cheque in question for examination in the FSL. 3. Learned Counsel for the petitioner while assailing the order dated 10.3.2014 has submitted that all the documents relating to the pending litigation between the petitioner and the respondent No. 2 are placed on record before the Trial Court however, the documents are photocopies of the original and therefore, the Trial Court has not considered those documents and has wrongly observed that no documents in support of allegation of misuse of cheque has been filed 4. Learned Counsel for the petitioner has placed reliance on a decision of Hon'ble Supreme Court in T. Nagappa v. Y.R. Muralidhar, reported in (2008) 1 NIJ 621 (SC) ; a decision of Bombay High Court in Baburao Madhavrao Munnemanik v. Vishwajit Pratapsing Pardesh & Another , a decision of Madras High Court in Elumalai v. Subbaramani and a decision of Kerala High Court in Arumughan Pillai v. State of Kerala & Anr., reported in (2006) 1 NIG 545 (Ker) and has argued that for the purpose of proving the age of the writing on the cheque in question the same is required to sent to the FSL.J Learned Counsel for the petitioner has also argued that when the petitioner ha been raised the contention that the complainant has misused the cheque a opportunity should be granted to the petitioner for adducing evidence to prove the same. 5. 5. Heard learned Counsel for the petitioner and perused the impugned order as well as the material placed on record. 6. Though the petitioner has submitted that he has submitted the photocopies of the documents in relation to the litigation pending between the parties pertaining to the cheque in question in the State of Punjab, no proof is available on record to this effect to prove that the said document has been produced before the Trial Court has refused the take cognizance of the same. 7. On the other hand the Trial Court has specifically observed that documents in relation to the allegation of misuse of cheque in question has been produced. The Trial Court has also specifically observed that the petitioner not produced any documents in relation to the litigation pending between the parties relating to the cheque in question and there is reasons to disbelieve the said observation made by the Trial Court. 8. Apart from that the petitioner has also failed to show that the petitioner has ever took any plea regarding the misuse of cheque in question before the Trial Court at any point of time prior to the filing of present application under Section 45 of the Evidence Act. When the petitioner has not raised any plea or contention before the Trial Court during the pendency of the trial which is pending since 2009, that the cheque in question was misused by the complainant it cannot be said that the petitioner is entitled for any opportunity adducing evidence in support of his allegation that the cheque in question was misused by the complainant. 9. In view of the above circumstances, I do not find any illegality in the order passed by the Trial Court. 10. The petitioner has failed to make out a case for interference. Hence, this Criminal Misc. Petition filed by the petitioner being devoid of any force, is hereby dismissed.Petition dismissed.