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2016 DIGILAW 1125 (RAJ)

Kishore Kumar Tank v. State of Rajasthan

2016-08-03

KANWALJIT SINGH AHLUWALIA

body2016
JUDGMENT: Kanwaljit Singh Ahluwalia, J. The present petition has been filed under Section 482 Cr.P.C. praying that the order dated 10.3.2016 passed by the Additional Chief Metropolitan Magistrate No.22, Jaipur Metropolitan Camp Chomu, whereby he had refused to send the Cheque in question (Exhibit-P/1) to Forensic Science Laboratory, be set aside, along with the order dated 21.6.2016 passed by the court of Additional District & Session Judge No.20, Jaipur Metropolitan, H.Q. Chomu, whereby the revision petition of the petitioner was dismissed and the order passed by the Additional Chief Metropolitan Magistrate No.22, Jaipur Metropolitan was affirmed. 2. Briefly stated, the respondent no.2 had filed a complaint under Section 138 of Negotiable Instrument Act against the petitioner. In the said complaint, the court of Additional Chief Metropolitan Magistrate No.22, Jaipur Metropolitan Camp Chomu took cognizance of offence under Section 138 N.I. Act against the petitioner and the trial proceeded. During the pendency of the trial, the petitioner filed an application praying that the Cheque in question (Exhibit-P/1) for analysis of handwriting be sent to Forensic Science Laboratory. The prayer made by the petitioner was declined by the trial court vide order dated 10.3.2016. The trial court in its order held that the accused nowhere in his defence earlier had taken a stand that writing on the cheque is not in the hand of the petitioner or writing on the cheque and the signatures on the cheque were in different ink. 3. Aggrieved against the said order, as stated earlier, the petitioner had filed revision. The revisional court also dismissed the revision by holding that the petitioner can lead his evidence in defence. 4. In another case, Aslam Khan v. Nanak Chand Vashishth, S.B. Cr. Misc. Petition No. 3368/2016, this Court had examined the efficacy of sending the cheque for comparison to Forensic Science Laboratory and this Court had rejected the said contention by observing as under:- "During the course of trial, the petitioner-accused had taken a stand that the cheque is neither in hand-writing of accused nor signed by him. The trial Court rejected the prayer of the petitioner for sending cheques to Forensic Science Laboratory on the ground that in the reply to the notice received from the complainant, it was no where stated that cheques are not in the handwriting of the petitioner. The trial Court rejected the prayer of the petitioner for sending cheques to Forensic Science Laboratory on the ground that in the reply to the notice received from the complainant, it was no where stated that cheques are not in the handwriting of the petitioner. The trial Court further noticed that in cross-examination of PW-1, no suggestion was given that hand-writing on the cheques is not of the petitioner-accused. This Court had earlier opined that in the State of Rajasthan due to limited infrastructure, F.S.L. is not in a position to submit timely reports in cases of rape and murder. This Court has held that in a litigation pertaining to Negotiable Instruments Act, which is a akin to civil litigation working of F.S.L. cannot be clogged by sending cheques for comparison pertaining to Negotiable Instruments Act Cases, which already have burdened the judicial system. To take care of the arguments raised by the learned counsel appearing for the petitioner, it is observed that petitioner has remedy available and he can always call handwriting expert as witness in defence and examine as an expert to support his stand by taking recourse to Section 45 of Indian Evidence Act. Therefore, right course of the petitioner is to file an application at the stage of defence evidence to call a handwriting expert to compare writing of cheque with the admitted and specimen writing of the accused. Hence, this Court cannot come to rescue of the petitioner and the present petition is, hereby, dismissed with liberty to the petitioner to file an appropriate application at the time of commencement of defence evidence to examine handwriting expert as a defence evidence." 5. After going through the order passed in Aslam Khan's case (supra), the learned counsel for the petitioner has also prayed that liberty be also granted to him to file an appropriate application at the time of commencement of defence evidence to examine handwriting expert as defence witness. 6. As prayed, liberty aforesaid is granted and the present petition is disposed of.