Telangana High Court
R. Sudarshan Reddy vs Gurrala Vijitha on 30 June, 2022
Author: D.Nagarjun
Bench: D.Nagarjun
THE HON'BLE DR. JUSTICE D.NAGARJUN
CRIMINAL PETITION No.7019 of 2019
ORDER:
This petition is filed by the accused in C.C.No.6211 of 2021 challenging the orders dated 22.10.2019 passed by the III Metropolitan Magistrate-cum-III Additional Junior Civil Judge, Cyberabad at L.B. Nagar in Crl.M.P.No.1831 of 2019 in C.C.No.6211 of 2021, which was filed for sending the cheque in dispute to the hand writing expert.
2. The brief facts, as can be gathered from the record presented before the Court, are that respondent No.1/complainant has filed C.C.No.6211 of 2021 against the petitioner/accused under Section 138 of the Negotiable Instrument Act, 1881 (for short, "the Act"). The contents of the said complaint would go to show that on 04.01.2017, the petitioner has approached respondent No.1 to invest an amount of Rs.50 lakhs in the film production of a movie titled as Prema Katha Chitram-2 for which respondent No.1 promised to pay the said amount within four months and accordingly, paid an amount of Rs.8 lakhs on 04.01.2017 and also issued cheques for some more amounts in the month of January and February, 2 2017, in the presence of one A. Prabhakar Reddy, who is no other than the father of respondent No.1. In all respondent No.1 has paid an amount of Rs.28 lakhs. On persistent demand by respondent No.1, the petitioner has given cheque for Rs.4,80,000/-, which was honoured and subsequently, paid Rs.60,000/- in four installments. Finally, the petitioner failed to pay an amount of Rs.22,60,000/- to respondent No.1. On 01.08.2018, the petitioner has issued post dated cheque bearing No.309129, dated 08.08.2018 for an amount of Rs.10 lakhs in the name of RPA creations. When respondent No.1 presented the said cheque, the same was returned dishonoured with an endorsement "payment stopped by drawer".
3. Respondent No.1 got issued legal notice dated 19.11.2018, which was served on the petitioner on 22.11.2018, wherein she demanded the petitioner to pay the money covered under the cheque within 15 days from the date of receipt of the notice and as there was no response, she filed a complaint against the petitioner under Section 138 of the Act. The trial Court has proceeded with the trial and after appearance of the petitioner, respondent No.1 was also examined as PW.1. 3
4. The contention of the petitioner is that the allegations of respondent No.1 in respect of issuance of cheque etc., are false. The petitioner has not issued the cheque in the month of August, 2018. According to him, respondent No.1 has shown interest to finance for the movie and offered to invest an amount of Rs.2 crores and as a security, respondent No.1 has demanded him to issue blank signed cheque and accordingly, he has issued blank signed cheque to her. However, respondent No.1 failed to invest the money as promised. It is the further case of the petitioner/accused that the blank cheque given by him to respondent No.1 was manipulated, misused and materially altered by her and therefore, sending the said cheque to the hand writing expert is required and has filed Crl.M.P.No.1831 of 2019. After hearing both sides, the learned Magistrate dismissed the said application. Aggrieved by the same, the present petition is filed.
5. Heard both sides and perused the record.
6. Now, the point for determination is whether the cheque, which is marked as Ex.P1 in the trial Court in C.C.No.6211 of 2021 can be permitted to be sent to hand writing expert? 4
7. There is no dispute that respondent No.1 has filed C.C.No.6211 of 2021 against the petitioner under Section 138 of the Act, basing on a cheque for Rs.10 lakhs, which was returned dishonoured. It is also her case that the petitioner barrowed Rs.28 lakhs out of which he has issued cheque for Rs.10 lakhs under Ex.P1.
8. The contention of the petitioner is that he has given the cheque in dispute to respondent No.1 not as a security to the loan, which he has borrowed from her. He has issued only blank cheque signed by him to respondent No.1 as a security for Rs.2 crores, which she agreed to invest in film production and that except the signature, rest of the writing on the cheque, which includes date, quantum of money in figures and words etc., were filled up by respondent No.1 by way of tampering and manipulation.
9. In order to prove the same, the petitioner has filed Crl.P.No.1831 of 2019 under Section 45 of the Indian Evidence Act to send the said cheque to hand writing expert. Respondent No.1 has strongly opposed the said request and on considering the rival contentions, the trial Court has dismissed the petition 5 on 22.10.2019 by way of speaking orders. Aggrieved by the same, the present petition is filed.
10. On perusal of the orders of the trial Court dated 22.10.2019, the main ground on which the petition is dismissed was that if a cheque has been signed by a person and the person, who received the cheque, can fill the blanks of the cheque and can present the same in the bank. If the signature on the cheque is not disputed, it is immaterial as to who has filled up the cheque. If a person signs the cheque and gives blank cheque and if the blanks have been filled by the other person, merely on the ground that the other person has filled the cheque does not itself make the cheque invalid. There is no dispute in respect of the said proposition.
11. In the case on hand, when respondent No.1/PW.1 was examined before the trial Court, in the cross-examination, a suggestion was specifically given by the petitioner to respondent No.1, whereunder a question was asked as to who has filled up the contents of the cheque for which respondent No.1/PW.1 has answered that the petitioner/accused filled up payee column, rupees, words, figures and date, Ex.P1. That means, according to respondent No.1, the petitioner has given duly filled cheque 6 and not the blank cheque, which means the petitioner/accused himself has filled the cheque in all respects, put the signature and gave it to respondent No.1. It is the contention of the petitioner/accused that the signature on Ex.P1 belongs to him, but he has not filled up the other columns of the cheque.
12. The petitioner/accused and respondent No.1/complainant have been disputing as to who has filled the cheque. Even though the question as to who has filled the cheque does not make the cheque invalid or valid. The cheque in dispute requires to be sent to the hand writing expert for other reasons.
13. It is the case of respondent No.1/complainant that she has received a cheque, which was duly filled and signed by the petitioner. Therefore, when there is a conflict as to who has filled the cheque, and when there are no eye witnesses, one of the options available for the Court is to send the cheque in dispute to hand writing expert to invite a report as to whether the columns in the cheque were filled by the petitioner/accused or not. If at all, if the hand writing expert gives an opinion that the columns of the cheque were filled by the petitioner/accused at the time of putting his signature, then certainly the petitioner 7 is liable to pay the money under the cheque. But, on the contrary, if the hand writing expert opines that the person, who has filled up the columns of the cheque, is different then that of the petitioner, then the question who could have filed the cheque. Is respondent No.1 or somebody else on her behalf has filled the cheque. If at all the hand writing expert gives an opinion that if the writing on the cheque except the signature does not belong to the petitioner, then the contention of respondent No.1that the petitioner/accused himself has filled the cheque and filed before the Court becomes false, which again creates a doubt whether the disputed cheque was given as a security or given for discharge of legally enforceable debt.
14. Therefore, in a case like this if the disputed cheque under Ex.P1 sent to expert, the opinion of the expert would be helpful to the Court to come to a conclusion as to who has filled the cheque. As already observed, the cheque will not automatically get invalid on account of the fact that the writings on the cheque are of different persons. Still in such circumstance, the petitioner/accused will be in a position to prove that the cheque given by him has been misused and that respondent No.1/complainant is trying to put-forth a false case against him.
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15. Once the signature in the cheque is admitted by the petitioner/accused, the respondent/complainant can raise presumption under Section 139 of the Act to the effect that the cheque was given for discharging legally enforceable debt. However, the said presumption is retuttable by the petitioner/accused, for which he has to either lead evidence, or point out the defects of the case of the respondent/complainant. Once the petitioner/accused rebuts the presumption, preponderance of probabilities have to be considered to see whose case can be considered. If the hand writing expert gives report in favour of the petitioner/accused, then it is one of the grounds to rebut the presumption.
16. The Courts while considering the application for sending a document to an expert are supposed to be liberal. The Courts are expected to do complete justice by giving opportunity to both sides to produce all possible evidence. The evidence of the expert will help the trial Court in coming to the conclusion as to whether the petitioner can be found guilty for the offence under Section 138 of the Act. Considering the above, this Court is of the opinion that there is no reason for not sending the disputed cheque to the hand writing expert.
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17. Considering the circumstances, the criminal petition is allowed and the orders of the trial Court in Crl.M.P.No.1831 of 2019 in C.C.No.6211 of 2021 were set aside and the trial Court is directed to send the disputed cheque under Ex.P1, dated 07.08.2018 to the hand writing expert along with admitted and/or sample hand writing of the petitioner, which would be obtained in the open Court. The petitioner shall bear the expenses for sending the cheque to hand writing expert.
Miscellaneous applications, if any, shall stand closed. No costs.
_____________________ DR. D.NAGARJUN, J Date: 30.06.2022 ES