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Rajasthan High Court · body

2018 DIGILAW 1315 (RAJ)

Shanti Devi v. Amit Lohiya

2018-05-17

VIJAY BISHNOI

body2018
JUDGMENT Vijay Bishnoi, J. - This criminal misc. petition under Section 482 Cr.P.C., 1973 has been filed by the petitioner being aggrieved with the order dated 20.04.2018 passed by the Additional Sessions Judge No.6, Jodhpur, (hereinafter to be referred as 'the revisional court'), whereby the criminal revision petition No.163/2018 preferred by the petitioner has been dismissed. 2. The aforesaid revision petition was filed by the petitioner being aggrieved with the order dated 05.02.2018 passed by the Judicial Magistrate No.9, Jodhpur (hereinafter to be referred to as the 'trial court') in criminal original case No.830/2015, whereby the application filed on behalf of the petitioner under Section 45 of the Evidence Act has been dismissed. 3. Brief facts of the case are that the petitioner is facing trial for the offence punishable under Section 138 of the Negotiable Instrument Act initiated at the instance of the respondent. 4. The petitioner has moved an application under section 45 of the Indian Evidence Act with a prayer to send the cheque in question for examination by the handwriting expert while claiming that the cheque in question does not contain her signature and the same is forged one. 5. The trial court has rejected the said application on two grounds, firstly, that the cheque has not been returned by the bank on the ground of dissimilarities in the signature of the petitioner but has returned on account of insufficient funds in the bank account of the petitioner. The second reason given by the trial court is to the effect that on 06.02.2016, the petitioner has moved an application under Section 91 Cr.P.C., 1973 before the trial court and in that application, she has specifically stated that the petitioner has already paid the due amount to the complainant in between the date of handing him over the cheque and presentation of the same in the bank. 6. The trial court is of the opinion that in the application under Section 91 Cr.P.C , 1973 the petitioner had admitted that she has given cheque in question to the respondent and she has not stated in her application that the said cheque does not contain her signature. 7. 6. The trial court is of the opinion that in the application under Section 91 Cr.P.C , 1973 the petitioner had admitted that she has given cheque in question to the respondent and she has not stated in her application that the said cheque does not contain her signature. 7. Being aggrieved with rejection of the application under section 45 of the Indian Evidence Act by the trial court, the petitioner has preferred a revision petition before the revisional court, however, the revisional court while agreeing with the reasons given by the trial court for rejecting the application filed by her under section 45 of the Indian Evidence Act and affirmed the said order, however, granted liberty to the petitioner to produce the evidence of handwriting expert in her defence at appropriate stage. 8. Learned counsel for the petitioner has submitted that once the petitioner has disputed her signature over the disputed cheque, the trial court is bound to send the same to the handwriting expert for examination. It is contended that the petitioner has denied her signature on the cheque in question and in such a situation, the only course left with the trial court is to send the cheque for examination by the handwriting expert and such prayer of the petitioner cannot be rejected in view of the law laid down by Hon'ble Supreme Court in Kalyani Baskar vs. M.S. Sampoornam reported in (2007) 2 SCC 258 . 9. Learned counsel for the petitioner has therefore prayed that the impugned orders passed by the courts below be set aside and the trial court be directed to send the cheque in question for examination by the handwriting expert. 10. Heard the learned counsel for the petitioner and perused the impugned orders. 11. It is not in dispute that prior to filing of the application under section 45 of the Indian Evidence Act, the petitioner has moved an application under Section 91 Cr.P.C., 1973 before the trial court on 06.02.2016, wherein she has specifically stated that in between the dates when the petitioner handed over the cheque in question to the respondent and date of presentation of the said cheque in the court, she has already paid all the due amount to him and, therefore, the complainant is not supposed to present the cheque in question for realization in the concerned bank. 12. 12. It is noticed that in the said application, she has not stated that the cheque in question does not contain her signature. Otherwise also, the check was returned by the bank concerned with a remark "insufficient funds" in the bank account of the petitioner and not on account of dissimilarities in the cheque in question. 13. So far as regarding the judgment of the Hon'ble Supreme Court rendered in Kalyani Baskar (supra) is concerned, the same is of help to the petitioner because in the said case, the accused at the very initial stage has moved an application under Section 245 Cr.P.C., 1973 raising objection to the effect that the cheque in question does not contain his signature. The trial court has dismissed the said application on the ground that the genuineness of the signature can be questioned only at the time of the trial of the case. 14. Thereafter, the trial was commenced and the evidence of the complainant was recorded in which the banker of the accused has appeared as a witness and during the cross-examination deposed that he has not verified the signature before returning the cheque in question as dishonored. At this stage, the accused has filed an application under Section 243 Cr.P.C., 1973 with a prayer for sending the cheque in question, however, the trial court has dismissed the said application. 15. Taking into consideration the above facts, the Hon'ble Supreme Court has held that when the accused at the very initial stage has raised doubt about genuineness of her signature on check in question and when the banker of the accused has specifically deposed before the court that he has not verified the signature of the accused before dishonoring it, the trial court has erred in rejecting the application filed by the accused under Section 243 Cr.P.C., 1973 for sending the cheque in question to the handwriting expert for his opinion about the signatures of the accused. 16. As stated earlier, in the present case, prior to filing of the application under section 45 of the Indian Evidence Act, the petitioner has moved an application under Section 91 Cr.P.C., 1973 before the trial court in which she has admitted the factum of handing over the cheque in question to the respondent and she has not specifically stated that the cheque in question does not contain her signature. 17. 17. It is noticed that the revisional court has already granted liberty to the petitioner to adduce evidence in defence of the handwriting expert at appropriate stage. 18. In view of the above, I do not find any merit in this criminal misc. petition and the same is hereby dismissed.