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Himachal Pradesh High Court · body

2018 DIGILAW 549 (HP)

Rajiv Kumar v. Yogesh Kumar

2018-04-04

AJAY MOHAN GOEL

body2018
JUDGMENT Ajay Mohan Goel, J —By way of this petition, petitioner has challenged order dated 18.01.2018, passed by the Court of learned Judicial Magistrate 1st Class, Court No. (II) , Amb, District Una, in Criminal Complaint No. 256-1 of 2013, vide which an application filed under Section 73 of the Indian Evidence Act, praying for directions to send the cheque, subject matter of the case, for determination of the age of the signatures and for comparing the hand writing with the words and date mentioned in the cheque, stands rejected. 2. Brief facts necessary for adjudication of the petition are as under. A complaint has been filed under Section 138 of the Negotiable Instruments Act by the respondent/ complainant against the present petitioner/accused. Undisputed fact is that though petitioner/accused does not dispute his signatures upon the cheque, however, his case is that the cheque only bears his signatures and it is the complainant who had filled in date and amount in the cheque. In this background, an application was filed by the petitioner/accused under Section 73 of the Indian Evidence Act with the prayer that the cheque be sent to determine the age of the signatures which applicant had appended on the same as also for the comparison of the hand writing with the words and date mentioned in the cheque. 3. Said application has been dismissed by the learned trial Court by holding that in view of provisions of Section 20 of the Negotiable Instruments Act, as the accused had admitted his signatures on the cheque, no useful purpose would be served by comparing hand writing on the cheque. 4. I have heard learned Counsel for the parties and also gone through the order under challenge. 5. Section 20 of the Negotiable Instruments Act, 1881 provides as under:- "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 {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." 6. A perusal of the statutory provisions thus makes it amply clear that where a person signs or delivers to another person, a paper stamped in accordance with the prevailing law, either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder to make or complete, as the case may be, upon it an negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. 7. On the other hand, Section 73 of the Indian Evidence Act provides for comparison of signatures, writing or seal with others admitted or proved. The purport of Section 20 of the Negotiable Instruments Act, which is a special Act, is totally different from that of Section 73 of the Indian Evidence Act. Under the provisions of Section 20 of the Negotiable Instruments Act, even the partially filled negotiable instrument has to be honoured by the person who delivers the same and in this view of the matter. Taking into consideration the fact that the accused had admitted his signatures on the cheque, he cannot be permitted to for-back upon Section 73 of the Indian Evidence Act. Onus to establish his defence solely lies upon the accused which has to be done within the ambit of statutory provisions of the Negotiable Instruments Act, which is both a substantive and procedural law. 8. At this stage, it is pertinent to mention that the complaint in fact has been filed against the present petitioner as far back as in the year 2013 and the application under section 73 of the Indian Evidence Act was filed only on 12.06.2017. During the course of arguments, no satisfactory answer could be given by learned Counsel for the petitioner as to why this application was otherwise filed at such a belated stage which otherwise also demonstrates that filing of the application was nothing but an attempt by the petitioner/accused to further delay the matter. 9. During the course of arguments, no satisfactory answer could be given by learned Counsel for the petitioner as to why this application was otherwise filed at such a belated stage which otherwise also demonstrates that filing of the application was nothing but an attempt by the petitioner/accused to further delay the matter. 9. At this stage, learned Counsel for the respondent has also drawn attention of this Court to a judgment passed by a Co-ordinate Bench of this Court in Criminal Revision No. 132 of 2017, titled Tajinder Singh versus Anil Nayyar, in which same view has been taken that in proceedings under Section 138 of the Negotiable Instruments Act, in view of provisions of Section 20 the Negotiable Instruments Act, course provided under Section 73 of the Indian Evidence Act cannot be resorted to. 10. In view of above discussion, as there is no merit in the present petition, the same is dismissed. Pending miscellaneous application(s) , if any, also stand disposed of accordingly.