Jharkhand High Court
Narayan Kumar Ghosh (65 Yrs.) vs The State Of Jharkhand on 11 September, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2606 of 2024
Narayan Kumar Ghosh (65 yrs.), s/o Late Balram Ghosh, R/o South
Office Para Doranda, P.O., P.S. -Doranda, District -Ranchi.
.... Petitioner
Versus
1. The State of Jharkhand
2. Md. Jawed, S/o Late Md. Samim Ansari, R/o Chandni Masjid,
Baldeo Sahay Lane, Gudri Chow, P.S. -Lower Bazar, P.O. -Lower
Bazar, District -Ranchi.
.... Opp. Parties
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Harendra Kr. Mahto, Advocate For the State : Mr. Manoj Kr. Mishra, Addl. P.P. .....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 with a prayer to quash the order dated 19.07.2024, passed by the Judicial Commissioner, Ranchi in Criminal Revision No. 262 of 2024.
3. The allegation against the petitioner is that the petitioner issued a cheque which was dishonoured for insufficiency of funds. Upon demand notice being sent, the petitioner did not pay the cheque amount hence the Complaint Case No. 2883 of 2022 was filed involving the offence punishable under Section 138 of the Negotiable Instrument Act. It is the case of the petitioner that he has not signed the cheque and the signature and handwriting 1 Cr.M.P. No.2606 of 2024 appearing in the cheque is not that of the petitioner. The petitioner during his defence evidence filed a petition for verification of the signature appearing in the dishonoured cheque by a handwriting expert. The learned trial court considered that the cheque was dishonoured not because of mismatch of signature but for insufficiency of funds and observed that had the specimen signature of the drawer been differing from the signature appearing in the cheque, the bank ought to have dishonoured the cheque on the ground "Drawer's signature differs". Hence, finding no merit, the learned Judicial Magistrate -XXIV, Ranchi rejected the petition. Being aggrieved by the said order, the petitioner filed Criminal Revision No. 262 of 2024 but the same was dismissed by the learned Judicial Commissioner, Ranchi vide order dated 19.07.2024. The learned revisional court considering the provisions of Section 20, 49 & 125 of the Negotiable Instrument Act, 1881 observed that under the scheme of Negotiable Instrument Act, 1881 a cheque which is subsequently filled by putting name, date and amount is not rendered void only because it was so done, after the cheque was signed and delivered to the holder in due course. The revisional court also relied upon the Judgment of Hon'ble Supreme Court of India in the case of Oriental Bank of commerce Vs. Prabodh Kumar Tewari, reported in (2022) 3 Crimes (SC) 345 wherein the Hon'ble Supreme Court of India inter-alia observed that engagement of handwriting expert for determination of authorship of writings on 2 Cr.M.P. No.2606 of 2024 disputed cheque would be immaterial and after taking note of the fact that the petition has been filed to delay the proceeding concurred with the trial court and dismissed the revision.
4. The learned counsel for the petitioner, relying upon the Judgment of Hon'ble Supreme Court of India dated 11.07.2023 in the case of Ganga Prasad Ratnakar Vs. Fanindra Kumar Chandra, passed in Criminal Appeal No. 1888 of 2023 wherein in the facts of that case, where, the drawer of the cheque was the father of the accused, the Hon'ble Supreme Court of India in the facts of that case set aside the judgment of conviction and submits that in this case also, the cheque having been forcibly taken away from the son of the petitioner, hence it is submitted that both the courts below have committed grave illegality in rejecting the prayer for examination of the signature on the cheque by a handwriting expert. It is next submitted that the petitioner has examined two defence witnesses. Therefore, it is submitted that the prayer as prayed for by the petitioner in this criminal miscellaneous petition be allowed.
5. The learned Addl. P.P. on the other hand vehemently opposes the prayer made by the petitioner in this criminal miscellaneous petition and submits that undisputedly, the cheque was not dishonoured for mismatch of signature of the petitioner and the petition has been made at a belated stage after examination of two defence witnesses, only to delay the disposal of the case. Hence, it 3 Cr.M.P. No.2606 of 2024 is submitted that this criminal miscellaneous petition being without any merit be dismissed.
6. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law that expert's evidence as to handwriting or signature is opinion evidence and it can rarely, if affirmed, take the place of substantive evidence. The undisputed fact remains that the cheque was not dishonoured for mismatch of signature rather it was dishonoured for insufficiency of funds in the bank account.
It is a settled principle of law as has been held by the Hon'ble Supreme Court of India in the case of Dharampal and others vs Smt. Ramshri and others, reported in AIR 1993 SC 1361, para-4 of which reads as under:-
"4.There is no doubt that the learned Magistrate had committed an error in passing the subsequent orders of attachment when the first attachment was never finally vacated and had revived the moment the revision application filed against it was dismissed by the learned Sessions Judge. It appears that none of the parties including the Sessions Judge realised this error on the part of the Magistrate. The learned Sessions Judge had also committed a patent mistake in entertaining revision application against the fresh orders of attachment and granting interim stays when he had dismissed revision application against the order of attachment earlier. Let that be as it is. The question that falls for our consideration now is whether the High Court could have utilised the powers under S. 482 of the Code and entertained a second revision-application at the instance of the 1st respondent. Admittedly the 1st respondent had preferred a Criminal Application being Cr. R. No. 180/78 to the Sessions Court against the order passed by the Magistrate on 17th October, 1978 withdrawing the attachment. The Sessions Judge had dismissed the said application on l4th May, 1979. Section 397(3) bars a second revision application by the same party. It is now well settled that the inherent powers under S. 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. 4 Cr.M.P. No.2606 of 2024
Hence the High Court had clearly erred in entertaining the second revision at the instance of 1st respondent. On this short ground itself, the impugned order of the High Court can be set aside." (Emphasis supplied) that the inherent power under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code of Criminal Procedure, heence, the High Court should not entertain the second revision at the instance of a party in the guise of exercising the power under Section 482 Cr.P.C.
7. In view of the discussions made above, this Court do not find any gross illegality or perversity in the order passed by the learned Judicial Magistrate-XXIV, Ranchi or in order dated 19.07.2024, passed by the Judicial Commissioner, Ranchi in Criminal Revision No. 262 of 2024.
8. Hence, this criminal miscellaneous petition being without any merit is dismissed.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 11th September, 2024 AFR/Sonu-Gunjan/-
5 Cr.M.P. No.2606 of 2024