Madhya Pradesh High Court
Kashiram Sahu vs Vijay Kumar Gupta on 8 November, 2016
MCRC-19595-2016
(KASHIRAM SAHU Vs VIJAY KUMAR GUPTA)
08-11-2016
Shri Mukesh Kumar Mishra, counsel for the petitioner.
Heard on admission.
This miscellaneous criminal case has been instituted on
an application under Section 482 of the Code of Criminal
Procedure filed on behalf of the petitioner/accused
Kashiram Sahu. It is directed against the order dated
14.10.2016 passed by the Court of First Additional
Sessions Judge, Narsingpur, in criminal appeal
no.202/2015, whereby the application dated 27.09.2016
filed by the accused/petitioner for examination of the
cheque in question by a hand-writing expert, was
dismissed.
It has been submitted hereby that the accused had lost a
cheque book containing certain signed and unsigned
cheques while travelling on a motor-cycle between Joba
to Lakhnadon on 30.05.2011. Thereafter, he gave a
written application on 30.05.2011 to the concerned for
stopping the payment of lost cheques. The bank debited
Rs.2,700/- from his account towards the service charges
for stopping the payment of cheque; however, on
17.12.2012, the respondent/complainant filled
particulars in one of the signed cheques and presented it to the bank for encashment. The bank, instead of intimating the account-holder regarding the lost cheque, issued a memo to the effect that the cheque has been dis- honoured. For aforesaid deficiency in service, the Consumer Forum has imposed a fine upon the Bank. It has been further submitted by learned counsel for the petitioner that apart from the signature, the other particulars in the cheque have been filled at a different time, in different ink and in different hand-writing; therefore, it is imperative to get the cheque examined by an examiner of the questioned documents. Learned Appellate Court dismissed the application mainly on the ground that the application has been moved solely for the purpose of vexation and delay. It was further held that in any case, even as per the averments of the appellant, the cheque was an inchoate Negotiable Instruments and in view of the Section 20 of the Act, the complainant/respondent was entitled to fill it within the circumscribing limits. In aforesaid circumstances, the application was dismissed. The impugned order has been challenged on behalf of the petitioner on the ground that the abuse of a lost cheque by the complainant was the main and sole defence of the petitioner; therefore, the application for its examination and a hand-writing expert ought not to have been dismissed in a cavalier manner. It was further submitted that bona fides of the petitioners were established by the order of Consumer Forum. On perusal of the record and due consideration of the arguments advanced by the learned counsel for the petitioner, in the opinion of the Court, this miscellaneous criminal case must fail for the reasons hereinafter stated. The petitioner/accused is said to have lost the cheque on 30.05.2011, which was dis-honoured on 17.12.2012. The complaint in this regard was filed on 21.04.2013. The petitioner was convicted under Section 138 of the Negotiable Instruments Act; however, during the entire course of the pendency of the complaint, the petitioner did not make any application for getting the cheque examined by the hand-writing expert. Learned counsel for the petitioner has submitted that this was his sole defence, yet he failed to explain during the course of the arguments, as to why no application for aforesaid purpose was moved before the trial Court. That apart, the entire defence of the petitioner appears to be improbable. No person of common prudence would sign blank cheques in his cheque-book. In fact, the banks specifically advise their clients against such practice. It is also too much of a coincidence that such cheque-book lost on a high way would fall into the hands of complainant, who was an acquaintance of the accused. In aforesaid circumstances, learned Appellate Court was fully justified in holding that the application for examination of the cheque has been filled in a malafide manner with an intention of causing vexation or delay and consequently dismissed the application. It has been held by the Supreme Court in the case of Kalyani Baskar Vs. M.S. Sampoornam (2007) 2 SSC 258 that if an application for examination of the cheque in question by the hand-writing expert has been filled with intent to cause delay, it should be dismissed. Aforesaid principle applies with full force to the case at hand.
Consequently, this is not a case where interference in the impugned order is required either for the purpose of preventing abuse of process of any Court or for the purpose of securing ends of justice. Thus, no case has been made out for invoking the powers of the High Court reserved to it under Section 482 of the Code of Criminal Procedure, which powers, in any case, are to be used in rarest of the rare cases.
On the basis of foregoing discussion, this petition under Section 482 of the Code of Criminal Procedure deserves to be and is accordingly dismissed.
(C V SIRPURKAR) JUDGE vai