Ashok Kumar Sharma, S/o Shanti Prasad @ Chandu v. State of Rajasthan through P. P.
2016-10-05
MOHAMMAD RAFIQ
body2016
DigiLaw.ai
ORDER : Mr. Mohammad Rafiq, J. This petition under Section 482 Cr.P.C. has been filed by the accused-petitioner challenging order dated 04.02.2016 passed by Additional Civil Judge and Judicial Magistrate, First Class, No. 2, Bharatpur (for short 'the trial court') whereby application under Section 45 of the Indian Evidence Act filed by the petitioner for comparison of signatures on disputed cheques by a handwriting expert has been dismissed. Further challenge has been made to order dated 03.06.2016 passed by Special Judge, Schedule Caste/Schedule Tribe (Prevention of Atrocities) Cases, Bharatpur, Rajasthan (for short 'the revisional court') whereby revision petition filed by the petitioner against the aforesaid order has been dismissed. 2. Learned counsel for the petitioner argued that both the courts below have ignored the evidence on record and wrongly dismissed the application of the petitioner. The disputed cheque was not dishonoured due to insufficient amount, but it was dishonoured with remark to refer drawer because the petitioner had already filed an application before the bank. The respondent has taken the ground in his reply to application under Section 45 of the Indian Evidence Act. At the time of revision against cognizance order, the revisional court observed that cheque said to be theft but the petitioner never said so in his any of the application. It is argued that refer to drawer remark would mean that there is some defect or otherwise some problem to pay the amount written in the cheque. The cheque would have been taken to the issuer of the cheque for rectification of the problem but Respondent No. 2 has not done so. It may be presumed that the drawer is not known to the bank and this may possibly happen when the drawer has used a cheque book of someone else instead of using of his own cheque book. Respondent No. 2 would have contacted the bank for meaning of remark of 'refer to drawer'. Learned counsel for the petitioner argued that both the courts below have not considered the aforesaid aspects of the matter and passed the impugned orders which are liable to be quashed and set aside. 3. Learned Public Prosecutor opposed the petition. 4.
Respondent No. 2 would have contacted the bank for meaning of remark of 'refer to drawer'. Learned counsel for the petitioner argued that both the courts below have not considered the aforesaid aspects of the matter and passed the impugned orders which are liable to be quashed and set aside. 3. Learned Public Prosecutor opposed the petition. 4. Perusal of order passed by the trial court would reveal that application has been filed by the petitioner for comparison of signatures on disputed cheque by a handwriting expert, but the cheque has been returned by the bank with the remark, "refer to drawer", not on the ground of difference in signatures on the cheque. The petitioner earlier took the stand that his cheque book was stolen by someone and in the application he has averred that his cheque book was dropped in the way, therefore, his averments cannot be believed and application has been filed by the petitioner for the purpose of delaying the proceedings of the case because the case was pending at the stage of examination of the accused-petitioner under Section 313 Cr.P.C. The trial court, in support of its conclusion, has relied upon the judgments of this Court in Rampal v. State & Others, 2015 (2) NIJ 440 Raj. and Mukesh Kumar Gandhi v. Seema Devi, 2015 (1) NIJ 129 (Raj.) wherein it has been held that when cheque has not been returned on the ground of difference in signatures, then there is no need to send the cheque to a handwriting expert for comparison of signatures. The revisional court while dismissing the revision petition of the petitioner has reiterated the aforesaid findings. 5. In view of above, this Court is of the view that there is no illegality or infirmity in the orders passed by the courts below. There is no merit in this petition and the same is accordingly, dismissed. Stay application also stands dismissed.