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2022 DIGILAW 1347 (KAR)

Pushpa v. B. P. Umesh

2022-10-11

K.NATARAJAN

body2022
JUDGMENT K. Natarajan, J. - This petition is filed by the petitioner-accused under Section 482 of Cr.P.C. for setting aside the order passed by the XX Additional Chief Metropolitan Magistrate, Bengaluru in C.C. No. 24402/2018 dated 16.08.2022 on the application filed by the petitioner under Section 45 of the Indian Evidence Act, 1872. 2. Heard the arguments of learned counsel for the petitioner and learned counsel for the respondent. 3. The case of the petitioner is that the respondent is the complainant before the trial Court who filed a complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of N.I. Act for having dishonour of the cheque for Rs. 10.00 lakhs said to be issued by the petitioner to the respondent. After taking the cognizance, the trial Court issued summons to this petitioner, he appeared before the Court and denied the charges. Thereafter, the complainant examined himself as witness, got marked the documents and the case of the accused was one of the total denial, wherein, the complainant has produced and marked Ex.P.12-the loan agreement which is said to be executed by the petitioner-accused on 23.09.2017 which was denied by the petitioner in the cross-examination and also the petitioner is said to be produced Ex.D.7-the endorsement issued by the Bar Association stating that the stamp paper (non-judicial paper) said to be prepared a loan agreement by the complainant was not at all sold in the year 2017, the alleged date of its execution and it was sold only in the year 2018 i.e., on 03.05.2018. Based upon this document, the petitioner counsel filed an application under Section 45 of the Indian Evidence Act for referring the Ex.P.12-loan agreement to the FSL for expert opinion which was dismissed by the trial Court. Hence, he is before this Court. 4. The learned counsel for the petitioner has contended that this document i.e., loan agreement is essential for considering and this document is not at all executed by the petitioner-accused in favour of the complainant and it is created document. In order to prove the age of writings, it is necessary to refer Ex.P.12 to the FSL for obtaining expert opinion and if the application is allowed, no prejudice would be caused to the complainant case. Hence, prayed for allowing the same. In order to prove the age of writings, it is necessary to refer Ex.P.12 to the FSL for obtaining expert opinion and if the application is allowed, no prejudice would be caused to the complainant case. Hence, prayed for allowing the same. Learned counsel also relied upon the judgments of the Hon'ble Supreme Court as well as the Bombay High Court. 5. Per contra, learned counsel for the respondent-complainant has objected the petition and contended that the case is based upon the cheque which is admitted by the accused in the evidence and therefore, the question of referring the Ex.P.12-loan agreement which is a supplementary document is not necessary to refer the same to the Forensic Science Lab and there is no reason assigned by the accused in the application for referring Ex.P.12 to the FSL. Therefore, the trial Court has rightly rejected the application. He also contended that the application filed by the petitioner after the evidence and also arguments of the complainant before the trial Court and the only intention to drag the matter, this application came to be filed. Hence, prayed for dismissing the petition. The point that arise for my consideration is : "Whether the document-Ex.P.12 is required to be referred to the FSL for getting expert opinion and the order of the trial Court is liable to be interfered with? 6. Having heard the arguments and on perusal of the records, it is not in dispute that the petitioner is an accused before the trial Court facing the trial under section 139 N.I. Act, where, it is alleged by the respondent-complainant that the cheque was issued by this petitioner on 06.06.2018 to discharge the loan as per the loan agreement dated 23.09.2017. After taking cognizance, the trial Court commenced the evidence, the complainant already examined as PW.1 and has got marked the cheque and Ex.P.12-the loan agreement dated 23.09.2017 also marked by the complainant where the accused is denied the execution of Ex.P.12. As per Ex.D.7-the stamp paper was not at all purchased as on 23.09.2017, but the same was purchased only on 03.05.2018 as per the endorsement issued by the Vakeelara Sangha, where they have sold the stamp paper. As per Ex.D.7-the stamp paper was not at all purchased as on 23.09.2017, but the same was purchased only on 03.05.2018 as per the endorsement issued by the Vakeelara Sangha, where they have sold the stamp paper. The only contention is that the case is not based upon the loan agreement, but, it is based upon the cheque which is said to be issued by the accused which was dishonored due to insufficient funds. The Hon'ble Supreme Court in the case of T. Nagappa vs. Y.R. Muralidhar reported in AIR 2008 SC 2010 , where the trial Court refused to refer the cheque in question to the FSL for getting the report and the High Court also upheld the same. But the Supreme Court reversed the judgment and referred the cheque in question for FSL for getting expert opinion. The similar decision taken by the Bombay High Court in respect of the leading the defence evidence and referring the cheque to the expert opinion. But here in this case, the complainant marked Ex.P.12 which is not the main document for filing under Section 138 of N.I. Act. But the cheque in question was not sought by the accused for referring the same to the FSL for getting expert opinion but the Ex.P.12 which is the supplementary document produced by the complainant in support of the cheque for discharging of the loan and that too in the fag end of the trial, after the arguments addressed by the complainant before the trial Court, when the matter was posted for arguments of the defence side, the trial Court has held the presumption under Section 139 of N.I. Act is available in favour of the complainant for issuance of check while discharging the loan. In the above said two cases, in both Bombay High Court as well as the Hon'ble Supreme Court, where the accused requested to refer the cheque in question which is based upon the 138 of N.I. Act, wherein in the present case on hand the Ex.P.12 is only a supplementary document. Even without the supplementary document, the complainant can establish his case against the accused and the accused may rebuttal presumption by way of examining any witnesses. Even without the supplementary document, the complainant can establish his case against the accused and the accused may rebuttal presumption by way of examining any witnesses. But here in this case, the accused ha not chosen to examine any of the members or the vendor of stamp paper of the Bengaluru Vakeelara Sangha who sold the document in order to prove the Ex.D7, but, he wants to refer the Ex.P.12 which is a loan agreement. It is the settled principles of law that an admitted fact need not be proved as per Section 58 of the Indian Evidence Act. Once the document is denied by the accused or defendant, it is the duty of the complainant to prove the document in accordance with the law as per the Indian Evidence Act by examining any of the witness to the document or himself as a witness to the execution of the documents. Such being the case, merely, the accused denied the Ex.P.12, that itself is not an issue in question before the Magistrate. The issue question is whether the cheque issued by the accused for discharging the liability or not. Therefore, considering the same, the trial Court has rightly held that the issuance of cheque-Ex.P.1 is not disputed by the accused and also the signature. Such being the case, the question of referring the Ex.P.12 which is only a supplementary document need not be referred for getting expert opinion for the purpose of rebutting the evidence of the complainant. In fact, the complainant has to prove that this cheque was issued to discharge of the liability of loan. Such being the case, in the fag end of the trial, after the arguments of the complainant, referring the Ex.P.12 is not a crucial document other than the cheque. Such being the case, the question of referring the Ex.P.12-loan agreement to the FSL does not arise. Therefore, the application filed by the learned counsel for accused-petitioner does not survive for consideration and the trial Court has rightly rejected the application for sending the same to the expert opinion. Therefore, the petition is devoid of merits. 7. Accordingly, the petition is dismissed.