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2023 DIGILAW 571 (KAR)

P. Srinivasachari v. P. R. Mallikarjuna

2023-04-09

K.NATARAJAN

body2023
JUDGMENT 1. This criminal petition is filed by the petitioner-accused under Sec. 482 of Cr.P.C. for setting aside the order of dismissal dtd. 28/10/2022 passed on the application filed under Sec. 45 of Indian Evidence Act by the XXI Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.No.1649/2021. 2. Heard the arguments of learned counsel appearing for the parties. 3. The case of the petitioner is that he is facing trial in C.C. No.1649/2021 pending on the file of the XXI Additional Chief Metropolitan Magistrate, Bengaluru, for the offence punishable under Sec. 138 of Negotiable Instruments Act, on the ground that he is said to have issued a cheque to the respondent for Rs.3.00 lakhs, which came to be dishonourd and a complaint came to be filed by the respondent. It is the further case of the petitioner that during cross examination, the petitioner stated that he was taken to Upparpet Police Station on 20/3/2020 and by threatening him, his signature was obtained by the police on Rs.100.00 blank e-stamp paper, on the cheque and the complainant filed the complaint. As per the very statement made by the complainant in his examination-inchief, the cheque was filled up by the accused and signed by him. The further case of the petitioner is that the cheque was not filled by him but signed by him on the pressure of the police in the police station, when he was taken to custody. Therefore, he filed an application for referring the cheque to FSL for verifying the hand writing on the cheque, which came to be dismissed. Hence, the petitioner is before this Court. 4. Having heard the learned counsel for the parties, perused the records, especially, the sworn statement made by the complainant before the trial Court at paragraphs 3 and 4, where the complainant has categorically stated that, on 1/6/2020, the accused himself filled the cheque and after signing the same, in his presence, it was given to complainant. The contention of the accused, in the cross examination, is that he was taken to police station, which was admitted by the complainant in the cross examination that the accused was taken to police station for enquiry. It is the case of the petitioner that the signature on the cheque was obtained by the police, by threat. The contention of the accused, in the cross examination, is that he was taken to police station, which was admitted by the complainant in the cross examination that the accused was taken to police station for enquiry. It is the case of the petitioner that the signature on the cheque was obtained by the police, by threat. Therefore, it is necessary for the petitioner to rebut presumption under Sec. 139 of Negotiable Instruments Act for referring the disputed cheque to FSL in order to know as to whether the handwriting on the cheque is that of the complainant or of the accused. Therefore, rejecting the application by the trial Court is not correct and the disputed cheque should be referred to FSL for verifying the handwriting on the cheque and for the opinion of the handwriting expert is necessary. Therefore, the application filed by the petitioneraccused under Sec. 45 of Indian Evidence Act, requires to be allowed. 5. Accordingly, the criminal petition is allowed. The order of the trial Court dtd. 28/10/2022 dismissing the application filed under Sec. 45 of Indian Evidence Act, is set aside and the said application is allowed. *The trial Court is directed to refer the cheque in question to handwriting expert to verify. * Corrected vide Court order dtd. 16/6/2023. *as to whether the handwriting including the date on the cheque is of the accused or not.