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2015 DIGILAW 150 (RAJ)

Kamla Devi v. State of Rajasthan

2015-01-17

VIJAY BISHNOI

body2015
JUDGMENT 1. - This Criminal Misc. Petition under Section 482 has been field by the petitioner against the order dated 17.07.2013 passed by the Additional Sessions Judge, Parbatsar, District Nagaur (hereinafter referred to as 'the revisional court') in Criminal Regular Case No. 37/2013 and the order dated 21.01.2013 passed by the Additional Chief Judicial Magistrate, Parbatsar, District Nagaur (hereinafter referred to as 'the trial court') in Private Complaint No. 263/2008. 2. The revisional court has dismissed the revision petition filed by the petitioner and affirmed the order dated 21.01.2013 passed by the trial court. The trial court vide order dated 21.03.2013 has allowed the application filed on behalf of the petitioner under Section 219 Cr.P.C. and ordered for consolidation the Criminal Regular Case Nos. 179/2009 and 263/2008, however, the two separate applications filed by the petitioner in above mentioned criminal regular cases under Section 73 of Indian Evidence Act for sending the cheques for examination by hand writing expert has been rejected. 3. Learned counsel for the petitioner has argued that the petitioner has immediately moved an application for sending the cheques in question to the hand writing expert for expert opinion, however, the trial court has rejected the said application in mechanical manner. It is also contended by learned counsel for the petitioner that the petitioner has lawful right to defend herself and the said lawful right cannot be curtailed. It is also contended by learned counsel for the petitioner that the petitioner had given a blank cheque to the complainant for the purpose of security and the complainant had filled the said cheque by his own handwriting and mentioned amount of Rs. 1,50,000/- which was never paid to her by the complainant. 4. Learned counsel for the petitioner has placed reliance on the decision of the Hon'ble Supreme Court rendered in Kalyani Baskar v. M.S. Sampoornam reported in (2007) 2 SCC 258 and prayed that the impugned order passed by the trial court and affirmed by the revisional court may kindly be dismissed. 5. Heard learned counsel for the petitioner and perused the impugned orders. 6. It is not in dispute that the cheques in question were returned by the bank on account of insufficiency of funds and not on account of dissimilarity in the signatures of the petitioner or in the handwriting of the petitioner on the cheques. 5. Heard learned counsel for the petitioner and perused the impugned orders. 6. It is not in dispute that the cheques in question were returned by the bank on account of insufficiency of funds and not on account of dissimilarity in the signatures of the petitioner or in the handwriting of the petitioner on the cheques. The case of the petitioner is that one cheque of Rs. 20,000/- was handed over by her to the complainant by filling the same in her own handwriting, however, the second cheque of the alleged amount of Rs. 1,50,000/- was blank and the handwriting on the said cheque is not of the petitioner. The petitioner has prayed before the trial court that both the cheques should be sent for examination of the handwriting expert for the comparison of handwriting on both the cheques. 7. This Court is not impressed with the argument of learned counsel for the petitioner. The Section 118 of the Negotiable Instrument Act raises a presumption in favour of the holder of the cheque 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 in the bank for encasement. 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 encasement. The signatures of the petitioner has not been disputed by her on the blank cheque. Thus, even if the complainant has filled in the blank cheque given by the petitioner, then he had every right to present the same in the bank for encasement after filling the blanks. 8. The decision of the Hon'ble Supreme Court rendered in the case of Kalyani Baskar (supra) referred by learned counsel for the petitioner is quite distinguishable from the facts of the present case. In that case, the accused at the time of initial stage of her appearance before the Magistrate has filed an application under Section 245 Cr.P.C. in which she had categorically denied her signature on the cheque and its delivery to the respondent besides raising other preliminary objections in opposition to the complaint filed by the respondent under Section 138 of Negotiable Instrument Act. 9. 9. In the instant case, the petitioner has never raised any such preliminary objection or has not filed any application denying her signature or hand writing on the cheques in question. The application has been filed by the petitioner at a very belated stage when her statement under Section 313 Cr.P.C. was recorded. It is also noticed that the revisional court has passed the impugned order on 17.07.2013, however, the petitioner has filed this criminal misc. petition after a delay of about one year and four months. No satisfactory explanation of the said delay is given by the petitioner in this criminal misc. petition. Moreover though, the petitioner has filed this criminal misc. petition under Section 482 Cr.P.C., in fact it is a second revision petition which is clearly barred as per the provision of Section 397(3) of the Code of Criminal Procedure. 10. Hence, I do not find any merit in this criminal misc. petition and the same is hereby dismissed. 11. Stay petition also stands dismissed. *******