Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 1168 (HP)

Tajinder Singh v. Anil Nayyar

2017-10-13

SANDEEP SHARMA

body2017
JUDGMENT Sandeep Sharma, J. - Petitioner being aggrieved and dissatisfied with order dated 18.5.2017, passed by learned Additional Chief Judicial Magistrate, Chamba, whereby application filed on behalf of the petitioner-accused under sections 45 and 73 of the Indian Evidence Act, for comparison of admitted/specimen handwriting of accused and complainant with disputed handwriting on cheque by the hand writing expert, came to be dismissed, has approached this Court by way of instant proceedings, seeking therein direction for sending admitted/specimen handwriting of the accused and the complainant with the handwriting on the disputed instrument to the handwriting expert, after setting aside aforesaid order dated 18.5.2017. 2. Facts as emerges from the record are that respondent-complainant filed a complaint under section 138 of the Negotiable Instruments Act, in the Court of learned Chief Judicial Magistrate, Chamba, which came to be registered as Case No. 125/15, alleging therein that he had advanced a sum of Rs. 4.00 Lakh to the accused on his request on return basis. Accused with a view to discharge his aforesaid liability, issued a cheque bearing No. 393674 dated 2.10.2015, of Parvatiya Gramin Bank, Obri Sultanpur Branch, now renamed as Himachal Gramin Bank Obri, for a sum of Rs. 4.00 Lakh, against account No. 99228100080011, in favour of the complainant. However, the fact remains that the aforesaid cheque on its presentation to the Bank concerned, was dishonoured with the endorsement "not arranged for". Complainant, immediately after having received aforesaid memo from the Bank concerned, issued a legal notice dated 30.11.2015, Ext. CW-1/E, calling upon the accused to make payment good within a period of 15 days. However, the fact remains that accused despite having received aforesaid notice failed to make payment qua the cheque in question to the complainant, as such, the complainant was compelled to initiate proceedings under section 138 of Negotiable Instruments Act in the competent Court of law. It also emerges from the record that legal notice dated 30.11.2015 was duly received by the petitioner-accused on 20.11.2016 as is evident from postal receipt, Ext. CW-1/D. Complainant, with a view to prove his claim, examined himself as CW-1 and reiterated the averments contained in the complaint filed by him under section 138 of Negotiable Instruments Act. Accused, in his statement recorded under Section 313 Cr. PC, categorically denied issuance of cheque to the complainant and claimed that cheques No. 393668-393674 were lost. CW-1/D. Complainant, with a view to prove his claim, examined himself as CW-1 and reiterated the averments contained in the complaint filed by him under section 138 of Negotiable Instruments Act. Accused, in his statement recorded under Section 313 Cr. PC, categorically denied issuance of cheque to the complainant and claimed that cheques No. 393668-393674 were lost. He further stated before the Court below that he and complainant used to sit together and perhaps complainant got hold of these cheques and misused the same. He admitted that cheque in question was dishonoured but this fact came to his notice later on. Accused, in his statement recorded under Section 313 though admitted averments with regard to receipt of legal notice, but categorically stated that he did not make payment as he had no liability towards the complainant. Accused, while claiming himself to be innocent, admitted his signatures on the cheque in question. Subsequently, petitioner-accused moved an application under section 145(2) of the Negotiable Instruments Act, stating therein that complainant had removed cheques bearing No. 393668-393674 from the drawer of the accused and misused cheque No. 393674 by issuing it in his name by filling in amount of Rs. 4.00 Lakh in it, with his own hand. By way of aforesaid application, accused further averred that he had been searching his lost cheques but could not locate the same and came to know about removal of aforesaid cheques by the complainant, only after having received notice from Court, to face proceedings under section 138 of the Negotiable Instruments Act. With the aforesaid averments in the application, accused prayed that he be allowed to contest the complaint having been filed by complainant on the defence stated in the application, referred to herein above. Aforesaid application was allowed by the Court below and accordingly, matter was ordered to be listed for examination of complainant''s witnesses. Statement/cross-examination of the complainant was recorded on 22.12.2016, where after, his evidence was closed. 3. On 1.2.2017, statement of accused came to be recorded under Section 313 Cr.P.C, 1973 wherein he denied all the incriminating evidence against him and sought time to lead evidence in defence. It also emerges from the record that the accused, apart from examining himself also examined four other witnesses. 3. On 1.2.2017, statement of accused came to be recorded under Section 313 Cr.P.C, 1973 wherein he denied all the incriminating evidence against him and sought time to lead evidence in defence. It also emerges from the record that the accused, apart from examining himself also examined four other witnesses. On 28.3.2017, accused preferred an application under sections 45 and 73 of Indian Evidence Act, for comparison of handwriting of complainant on disputed cheque with his admitted signatures and handwriting of complainant and accused. 4. Complainant by way of reply opposed aforesaid application filed by the petitioner and specifically denied that petitioner used to keep cheque book in drawer of his table and he was in the habit of signing cheques in advance. Complainant further averred in his reply to the application that aforesaid plea was never taken by the petitioner by filing reply, if any, to the legal notice issued by the complainant. 5. Learned Court below vide order dated 18.5.2017, disposed of aforesaid application preferred on behalf of the petitioner-accused under sections 45 and 73 of the Indian Evidence Act, whereby aforesaid prayer made on behalf of the petitioner-accused for sending admitted/specimen handwriting of the accused and complainant with the disputed handwriting on the cheque to the handwriting expert for comparison, came to be rejected. 6. In the aforesaid background, petitioner-accused has approached this Court, in the instant proceedings. 7. Mr. N.S. Chandel, learned counsel representing the petitioner, vehemently argued that impugned order dated 18.5.2017, is not sustainable in the eye of law as such same deserves to be quashed and set aside. Mr. Chandel, while inviting attention of this Court, to the cross-examination conducted upon the complainant, CW-1, forcefully contended that once there was a candid admission on the part of the complainant that he had not filled in cheque, Court below ought to have allowed the application preferred by the petitioner, under sections 45 and 73 of the Indian Evidence Act, especially in view of candid defence put forth by the petitioner/accused that cheque in question was misused by the complainant. Mr. Mr. Chandel, further contended that true it is that signatures on cheque in question stand admitted by the petitioner but same could not be a ground for the Court below to dismiss the application preferred by petitioner for sending admitted/specimen handwriting of the accused and the complainant with the handwriting on the disputed instrument to the handwriting expert. Mr. Chandel, further contended that had the learned Court below acceded to the request having been made by the petitioner-accused in the application filed under sections 45 and 73 of the Indian Evidence Act, it would have rather helped the learned Court below to adjudicate the present controversy in most fair manner and no prejudice whatsoever would have been caused to either of the parties. While placing reliance upon the judgment passed by the High Court of Madhya Pradesh in Sohan Lal Singhal and others v. Sunil Mahajan, decided on 15.12.2014 , and judgment of Gujarat High Court in case titled Ashokkumar Uttamchand Shah v. Patel Mohmad Asmal Chanchad, decided on 26.3.1998 reported in AIR 1999 Gujarat 108 , learned counsel contended that in the teeth of admission made by the complainant that he had not filled in cheque with his own hand, matter should have been sent to the handwriting expert, especially to ascertain the age of the ink and handwriting/signatures of the petitioner as well as other/remaining handwriting on the cheque. 8. Mr. B.S. Chauhan, learned Senior Advocate duly assisted by Mr. Munish Datwalia, Advocate, while refuting aforesaid submission having been made by Mr. N.S. Chandel, Advocate, supported impugned order dated 18.5.2017 and stated that there is no illegality or infirmity in the same as such, there is no scope of interference. Mr. Chauhan, invited attention of this Court to the legal notice dated 30.11.2015 i.e. Ext. CW-1/E, which was got issued by complainant after having received information with regard to dishonouring of the cheque, from the bank concerned, to demonstrate that intimation with regard to dishonouring of cheque was given to the petitioner on 30.11.2015, by way of legal notice, which was duly received by him, as is evident from Ext. CW-1/D. Mr. CW-1/E, which was got issued by complainant after having received information with regard to dishonouring of the cheque, from the bank concerned, to demonstrate that intimation with regard to dishonouring of cheque was given to the petitioner on 30.11.2015, by way of legal notice, which was duly received by him, as is evident from Ext. CW-1/D. Mr. Chauhan, further contended that after having received aforesaid notice dated 30.11.2015, which was duly received by him, no steps, whatsoever were taken by the petitioner to lodge FIR or complaint either with the police or in the Court for such a long time, rather, petitioner, for the first time preferred a private complaint under Section 156(3) Cr.P.C , 1973in the Court of learned Chief Judicial Magistrate, Chamba, on 25.11.2016 i.e. after almost one year of issuance of legal notice. Mr. Chauhan, further invited attention of this Court to the Ext. CW-1/D, legal notice dated 25.10.2016, wherein for the first time, complainant was called upon to return cheques bearing No. 393668 to 393673 and withdraw the complaint filed by him under section 138 of the Negotiable Instruments Act. While concluding his arguments Mr. Chauhan contended that once, factum with regard to loss of cheques including cheque in question had come to the knowledge of the petitioner, after receipt of legal notice dated 30.11.2015, which was duly received by him, it is not understood what prevented petitioner-accused to lodge complaint against the complainant for such a long time. Mr. Chauhan, further contended that private complaint also came to be filed after one year of receipt of legal notice. Mr. Chauhan, while disputing application of aforesaid judgments cited by the learned counsel representing the petitioner, contended that same are not applicable in the present case, in view of the peculiar facts and circumstances of the case, wherein application under sections 45 and 73 of Indian Evidence Act, has been only filed to complicate the proceedings initiated by the complainant. While inviting attention of this Court to the provisions contained under sections 20 and 87 of Negotiable Instruments Act, Mr. Chauhan, contended that proof of filling up of negotiable instrument by complainant, if any, may not be of any relevance, especially when petitioner has not disputed his signatures on cheque. Mr. While inviting attention of this Court to the provisions contained under sections 20 and 87 of Negotiable Instruments Act, Mr. Chauhan, contended that proof of filling up of negotiable instrument by complainant, if any, may not be of any relevance, especially when petitioner has not disputed his signatures on cheque. Mr. Chauhan, in support of his arguments, placed reliance upon the judgment passed by Delhi High Court in Manoj Sharma v. Anil Aggarwal, 2012 (4) Civil Court Cases 175 (Delhi) , and judgment of Punjab and Haryana High Court in Sudarshan Kumar v. Manish Manchanda, 2015 (4) Civil Court Cases 346 (P&H) . 9. I have heard the learned counsel for the parties and gone through the record carefully. 10. It is not in dispute that the petitioner, while admitting his signatures on cheque in question, has taken defence that cheques bearing No. 393668-393674 had been lost and one of the cheques bearing No. 393674 was misused by the complainant. Petitioner also took defence that he was in the habit of keeping cheques in his drawer, which were removed/stolen by the complainant, in his absence, which he later on misused by presenting the same in the Bank concerned. 11. Whether the cheque in question was removed/stolen by the complainant from the drawer of petitioner, shall be decided by the Court below, on the basis of pleadings adduced on record by respective parties as well as law on the point, but it is undisputed before this Court that cheque in question was signed by the petitioner. At this stage, this Court deems it fit take note of section 20 of the Negotiable Instruments Act: "20. Inchoate stamped instruments Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in 14[India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder. 12. Bare perusal of provisions of Section 20 of the Act, clearly suggests that where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments, either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. 13. After having perused aforesaid provision of law as contained in section 20 of the Negotiable Instruments Act, this Court is inclined to agree with the contention of Mr. B.S. Chauhan, learned Senior Advocate, that proof of filling up of negotiable instrument by the complainant or for that matter by any person, may not be of any relevance, especially when signatures on cheque have not been disputed by the petitioner. At this stage, this Court may take note of candid admission made by the petitioner in the statement recorded under Section 313 Cr.P.C, 1973 while denying his liability to pay amount, if any, to the complainant. Petitioner, in his statement recorded under Section 313 Cr.P.C, 1973 has specifically admitted his signatures on cheque in question but with further qualification that he had kept signed cheques in his drawer, which have been misused by the complainant. Presumption of issuance of cheque for discharge of liability would definitely arise against petitioner in terms of provisions contained in Section 20 of the Act. 14. In this regard, reliable is placed upon judgment of Delhi High Court in Manoj Sharma v. Anil Aggarwal, 2012 (4) Civil Court Cases 175 (Delhi) , wherein it has been held as under: "4. It is seen that similar pleas were taken before the M.M. as also before the ASJ. 5. 14. In this regard, reliable is placed upon judgment of Delhi High Court in Manoj Sharma v. Anil Aggarwal, 2012 (4) Civil Court Cases 175 (Delhi) , wherein it has been held as under: "4. It is seen that similar pleas were taken before the M.M. as also before the ASJ. 5. Though, it was held in the case of T. Nagappa v. Y.R. Muralidhar, (2008) 5 SCC 633 on which reliance was placed before the court of ASJ, that the accused should be given fair trial to lead evidence in his defence, but, at the same time, it was also held that the court being the master of the proceedings must determine as to whether the application of the accused in terms of Section 243 (2) Cr.P.C , 1973is bona fide or not or whether thereby accused intends to bring on record a relevant material. Taking as it is that the blanks in the cheques and the pro-notes were filled up by the respondent/complainant, still petitioner was not entitled to prove the same by way of opinion of Handwriting Expert. In the case of Ravi Chopra v. State and Another, 2008(2) JCC (NI) 169, Delhi , it was held by this Court after discussing Section 87 and section 20 of the N.I. Act: "A collective reading of the above provisions shows that even under the scheme of the NI Act it is possible for the drawer of a cheque to give a blank cheque signed by him to the payee and consent either impliedly or expressly to the said cheque being filled up at a subsequent point in time and presented for payment by the drawee. There is no provision in the NI Act which either defines the difference in the handwriting or the ink pertaining to the material particulars filled up in comparison with the signature thereon as constituting a ''material alteration'' for the purposes of section 87 NI Act. What however is essential is that the cheque must have been signed by the drawer. If the signature is altered or does not tally with the normal signature of the maker, that would be a material alteration. What however is essential is that the cheque must have been signed by the drawer. If the signature is altered or does not tally with the normal signature of the maker, that would be a material alteration. Therefore as long as the cheque has been signed by the drawer, the fact that the ink in which the name and figures are written or the date is filled up is different from the ink of the signature is not a material alteration for the purposes of section 87 NI Act". 6. Further, in the case of P.S.A. Thamotharan v. Dalmia Cements (P) Ltd., 2005 (1) JCC (NI) 96 Madras , it was held that to have a validity of Negotiable Instrument such as cheque, it is not mandatory and no law prescribes that the body of the cheque should also be written by the signatory to the cheque. A cheque could be filled up by anybody, if it is signed by the account holder of the cheque, accepting the amount mentioned therein. 7. In view of this dictum and law as laid down in the afore-cited two judgments, and keeping in view the true spirit of section 20 and 87 of the N.I. Act, the proof of filling up of these negotiable instruments by the respondent or any person, would not be of any relevance. The petitioner has not disputed his signatures on the said cheques and even in cross-examination, has admitted this fact that the cheques were issued by him and handed over to the complainant along with the covering letter. The presumption of issue of cheques for discharge of the liability would arise against the petitioner. Thus, I do not see any impropriety or illegality in the orders of the M.M. as also that of the ASJ. The petitions being without any merit are hereby dismissed in limini." 15. Though this Court, after having carefully perused aforesaid provisions of law finds no force in the arguments of Mr. Thus, I do not see any impropriety or illegality in the orders of the M.M. as also that of the ASJ. The petitions being without any merit are hereby dismissed in limini." 15. Though this Court, after having carefully perused aforesaid provisions of law finds no force in the arguments of Mr. Chandel, learned counsel representing the petitioner, that court below ought to have sent the handwriting of petitioner as well as complainant to the hand writing expert in view of defence taken by the petitioner as well as candid admission made by complainant in his cross-examination, but, even if aforesaid prayer, for the sake of argument, is accepted, this Court has no hesitation to conclude that the learned Court below rightly has not acceded to the request of the petitioner for sending admitted/specimen handwriting of the accused and the complainant with the handwriting on the disputed instrument to the handwriting expert, keeping in view the conduct of the petitioner, who admittedly took no steps for almost one year to lodge complaint, if any, against the complainant for having removed signed cheques unauthorisedly from his drawer. In the case at hand, it is quite apparent that aforesaid notice dated 30.11.2015 was duly received by the petitioner vide Ext. CW-1/D, which fact has been further acknowledged by him in his statement recorded under section 313 CrPC, 1973 meaning thereby petitioner was fully aware of the fact that cheque bearing No. 393674 dated 2.10.2015 has been presented in bank concerned against account No. 99228100080011. 16. Interestingly, petitioner kept mum for more than one year and no steps, whatsoever were taken by him to either lodge FIR against the complainant or to file private complaint, if any, against him. It is only after filing of complaint under section 138 of the Negotiable Instruments Act, which came to be filed on 11.12.2015, petitioner chose to file private complaint under Section 156 (3) Cr.P.C, 1973 that too on 25.11.2016, i.e. after almost one year of lodging complaint under section 138 of Negotiable Instruments Act. 17. It is only after filing of complaint under section 138 of the Negotiable Instruments Act, which came to be filed on 11.12.2015, petitioner chose to file private complaint under Section 156 (3) Cr.P.C, 1973 that too on 25.11.2016, i.e. after almost one year of lodging complaint under section 138 of Negotiable Instruments Act. 17. Similarly, this Court finds from the record that though petitioner pursuant to notice issued to him by the Court below in the proceedings initiated by the complainant under section 138 of the Negotiable Instruments Act, put in appearance through his counsel on 3.3.2016, for the first time, but interestingly, application under section 145 (2) of Negotiable Instruments Act, whereby petitioner sought permission of court below to contest complaint on the defence as disclosed by him in the application, came to be filed on 15.11.2016, i.e. after eight months of putting appearance in the Court below. 18. Apart from above, statement of complainant came to be recorded before court below on 22.12.2016, wherein admittedly, he in the cross-examination, denied the suggestion that cheque was filled in by him, but application under sections 45 and 73 of Indian Evidence Act for comparison of handwriting of accused appearing on disputed cheque with his admitted signatures/handwriting came to be filed on 28.3.2017, i.e. after four months of recording of statement of complainant. 19. After, having carefully perused the pleadings adduced on record as well as defence set up by the petitioner-accused, this Court sees no illegality or infirmity in the order dated 18.5.2017, whereby it rejected the prayer of petitioner accused for sending admitted/specimen handwriting of the accused and the complainant with the handwriting on the disputed instrument to the handwriting expert. 20. Had the petitioner immediately after having received legal notice dated 30.11.2015, taken steps for lodging complaint, if any, against the complainant, this Court would have found some force in the prayer of the learned counsel representing the petitioner that court below ought to have sent admitted/specimen handwriting of the accused and the complainant with the handwriting on the disputed instrument to the handwriting expert for comparison. But in the instant case, where accused even after four months of recording statement, failed to file application under sections 45 and 73 of the Indian Evidence Act, as such, Court below rightly rejected the same. But in the instant case, where accused even after four months of recording statement, failed to file application under sections 45 and 73 of the Indian Evidence Act, as such, Court below rightly rejected the same. As has been discussed herein above that filling up of particulars on cheque in different hand-writings or ink from that of signatures of drawer is not to be considered as material alteration as per provisions of Negotiable Instruments Act. 21. Similarly, there is no provision in law, which provides that cheque is to be filled in one handwriting as such, learned Court below rightly held that even if upon examination of handwriting expert, disputed handwriting on cheque is found to be different from that of signatures and even age of ink used on cheque is found to be different, same may not be of any help to the Court, while deciding actual controversy, especially when signatures on cheque are admitted by the accused. At this stage, it would be profitable to take note of judgment passed by the Punjab and Haryana High Court in case Sudarshan Kumar v. Manish Manchanda, 2015(4) Civil Court Cases 346 (P&H) , wherein it has been held that it is not possible to give definite age of ink, as there is no scientific method of doing so. The High Court of Punjab and Haryana has held as under: "5. As per the contentions raised by learned counsel for the petitioner, it is alleged that the cheques in question have been manipulated later on by filling in the necessary particulars in the body of the cheques. He has pleaded that the cheques in question should be sent to the Forensic Science Laboratory to determine the age of the ink used to fill in the necessary particulars in the body of the cheques. But in my opinion, it is not possible for a document expert to give any definite opinion about eth age of the ink as it is not known in which year the ink used to write the document was manufactured. But in my opinion, it is not possible for a document expert to give any definite opinion about eth age of the ink as it is not known in which year the ink used to write the document was manufactured. The Constitutional Bench of Hon''ble Supreme Court in case Union of India v. Jyoti Prakash Mitter, AIR 1971 SC 1093 , elaborately dealt with this issue and laid down as under:- "After consultations between the Ministry of Home Affairs and the Ministry of Law, the Home Ministry sent certain old writings of the year 1904, 1949, 1950 and 1959, and requested the Director to determine the age of the writing of the disputed horoscope and marginal note in the almanac by comparison. The Director on April 17, 1965 wrote that it "was impossible to give any definite opinion by such comparisons particularly when the comparison writings were not made with the same ink on similar paper and not stored under the same conditions as the documents under examination", and that it "will not be possible for a document expert, however reputed he might be, anywhere in the world, to give any definite opinion on the probable date of the horoscope and the ink writing in the margin of the almanac"." 22. Consequently, in view of aforesaid discussion as well as law cited herein above, this Court has no hesitation to conclude that the aforesaid judgments cited by the learned counsel representing the petitioner in support of his arguments, have no applicability in the instant case. 23. In case titled as Sohanlal Singhal and another v. Sunil Jain decided on 15.12.2014 by the High Court of Madhya Pradesh Bench at Gwalior, accused had taken defence that cheque was not filled with his handwriting and operative part of cheque was filled by using different pens, therefore, it would be beneficial evidence in favour of the petitioners/accused to ascertain the age of both the writings, signature of the petitioners as well as other remaining writing of the cheque. 24. High Court of Punjab and Haryana, in Sudarshan Kumar v. Manish Manchanda , as has been taken above, has specifically held that it is not possible for handwriting expert to give definite opinion of age of ink and there is no scientific method to determine age of ink. 25. 24. High Court of Punjab and Haryana, in Sudarshan Kumar v. Manish Manchanda , as has been taken above, has specifically held that it is not possible for handwriting expert to give definite opinion of age of ink and there is no scientific method to determine age of ink. 25. Bombay High Court in Avinash Ramkrushna Lokhande v. Miyasaheb Gramin Bigarsheti Sahakari Patsanstha Ltd., 2013 (4) Civil Court Cases 716 (Bombay) held that Section 20 of the Act authorizes the payee or holder in due course to complete an incomplete negotiable instrument and there was no necessity to send the disputed cheque to hand writing expert for verification of hand writing and signatures thereon. It has been held as under: "9. At the outset, it appears that the parties have adduced/produced their respective evidences before the learned trial court and even the statement of the petitioner-accused has been recorded under section 313 of the Code of Criminal Procedure, 1973. Thereafter, the petitioner has preferred an application Exh. 47 on 11.01.2012 requesting to send the disputed cheque in question to the hand writing expert for verification of the hand writing and signature thereon and to call expert''s opinion in that regard. However, the petitioner has nowhere disputed/denied his signature on the cheque in question (Exh.15) and the substance of the evidence is silent in that respect. Hence, in that view of the matter, there was no necessity to send the disputed cheque in question to the hand writing expert for verification of hand writing and signature thereon and the learned trial court has rightly rejected the application preferred by the petitioner on 13.02.2012. Hence, there is no error in the impugned order, and therefore, no interference is called for therein. Hence, present petition deserves to be rejected." 26. Accordingly, in view of the detailed discussion made herein above and judgments of various High Courts, as referred above, the present petition deserves dismissal and same is dismissed. pending applications, if any, are also disposed of. Interim directions, if any, are also vacated.