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Rajasthan High Court · body

2016 DIGILAW 421 (RAJ)

Shivdayal Sharma v. Sudeep Karnawat

2016-03-16

M.N.BHANDARI

body2016
ORDER : M.N. Bhandari, J. This criminal misc. petition has been filed to challenge the order of the learned Magistrate dated 11st August, 2015 on an application under Sections 45 and 73 of the Indian Evidence Act read with Section 243(2) Cr.P.C. The revision petition against the said order was also dismissed on 11th January, 2016. 2. Learned counsel for petitioner submits that on a complaint under Section 138 of the Negotiable Instruments Act, 1881 (in short “the Act of 1881”), the statements of the witnesses were recorded. The petitioner took defence that the writing on the cheque as well on the agreement were not made by him. The agreement was not even executed by the petitioner rather signatures were taken on the blank papers. 3. The application was submitted to get FSL report of the cheque as well as of the agreement to find out as to whether it was written by the petitioner. The FSL report may shows that writing on the agreement and the cheque are not of the petitioner. In that case defence would be supported by the opinion. The application should have been allowed by learned Magistrate or the revisional court. In absence of FSL report, the petitioner would not be getting fair opportunity of defence. A reference of the judgment of the Apex Court in the case of Mrs. Kalyani Baskar v. Mrs. M.S. Sampoornam, reported in 2007 (1) DCR 168 has been given. 4. I have considered the submission made by learned counsel for petitioner and perused the record. 5. On a complaint under Section 138 of the Act of 1881, the parties adduced their evidence. The petitioner has not disputed his signatures on the cheque as well as on the agreement. The allegation is that signatures were taken on the blank papers and subsequently agreement was prepared. The similar is the position of the cheque. The issue aforesaid was considered by learned Magistrate. The court found that signatures on the agreement and cheque have not been disputed then there is no purpose to send it for FSL report. The revision petition thereupon was dismissed. 6. The petition under Section 482 Cr.P.C. is nothing but a second revision petition in the hands of the petitioner himself. The issue aforesaid was considered by learned Magistrate. The court found that signatures on the agreement and cheque have not been disputed then there is no purpose to send it for FSL report. The revision petition thereupon was dismissed. 6. The petition under Section 482 Cr.P.C. is nothing but a second revision petition in the hands of the petitioner himself. The second revision petition is not maintainable in view of provisions of the Cr.P.C. In few judgments, the Apex Court has accepted maintainability of the petition under Section 482 Cr.P.C. but only in exceptional circumstances. The case in hand is not of exceptional circumstances so as to maintain the second revision petition in the shape of petition under Section 482 Cr.P.C. The present petition deserves to be dismissed on the aforesaid ground itself. 7. If merit of the case is also considered, signatures on the cheque as well as on the agreement have not been disputed. The case of the petitioner is that writing on the cheque as well as on the agreement is of others thus FSL report is necessary for fair trial. As per Section 20 of the Act of 1881, even incomplete negotiable instrument is admissible and can be filled by other party. The necessity is of signature of the party concerned and has not been disputed by the petitioner. The reference of the judgments of the Delhi High Court in the case of Manoj Sharma v. Anil Aggarwal, reported in 2013 (1) RCR (Criminal) 61 and in the case of Ravi Chopra v. State & Anr., reported in 2008(2) JCC (NI) 169 would be relevant. There considering the incomplete negotiable instrument (cheque), it has been held that if signature on the cheque is not disputed, filling of instrument by other party is of no consequence. In the light of the judgment aforesaid, I do not find that cheque was required to be sent to the FSL. The cheque can be filled by others thus it makes no effect on the complaint under Section 138 of the Act of 1881. 8. So far as agreement to sale is concerned, again the petitioner has not disputed his signature on it. His signatures said to have been taken on blank papers and thereupon agreement was executed. It could not be explained as to why blank papers were signed. 8. So far as agreement to sale is concerned, again the petitioner has not disputed his signature on it. His signatures said to have been taken on blank papers and thereupon agreement was executed. It could not be explained as to why blank papers were signed. The documents are otherwise signed by many persons which include few witnesses produced in defence. Even if writing on the documents is of others, it would not affect the case. Looking to the aforesaid, I do not find that a case is made out to accept the application by quashing the impugned orders. 9. The judgment of Apex Court in the case of Mrs. Kalyani Baskar (supra) has been referred. It is no doubt true that evidence in support of defence is a valuable right and should be allowed but it cannot be only for sake of it or to delay the proceedings. Learned trial court so as revisional court have considered the issue and finding no ground to seek FSL report, the application submitted by the petitioner was dismissed. 10. Finding no error in the impugned orders, criminal misc. petition is dismissed. The stay application is also dismissed. 11. It is however made clear that any observation made in this order would not affect either of the parties in the trial.