Karnataka High Court
K S Zabiullah Sharieff vs Syed Imtiaz Ahmed on 2 December, 2016
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF DECEMBER 2016
BEFORE
THE HON'BLE MR.JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION NO. 8760 OF 2016
Between:
K.S. Zabiullah Sharieff,
S/o K.M. Shafiulla Sharieff,
Aged about 38 years,
R/o Khazi Street,
Shidlaghatta,
Chikkaballapur District - 562 101.
...Petitioner
(By Sri. Prashanth P.N., Advocate)
And:
Syed Imtiaz Ahmed,
S/o late Syed Mohammed,
Aged about 55 years,
R/at No.30, BDA Complex,
1st Floor, Sector - IV,
HSR Layout,
Bangalore - 560 012.
... Respondent
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This Criminal Petition is filed under Section
482 of Cr.P.C. praying to set aside the impugned
order dated 09.11.2016 passed by the XIX
A.C.M.M., Bangalore in C.C.No.8852/2015 on the
I.A. filed under Section 45 of Indian Evidence Act,
seeking kind intervention of the Hon'ble Court to
refer the disputed cheque to the handwriting expert
for seeking opinion on the guinness of signature
and also written contents in the disputed cheque.
This Criminal Petition coming on for admission
this day, the court made the following:
ORDER
Heard the learned counsel for the petitioner.
2. The petitioner is said to be accused of an offence punishable under Section 138 of The Negotiable Instruments Act, 1881 (N.I.Act). It transpires that the petitioner had contested the matter and has vehemently denied that the cheque was issued on his account or that it bore his signature, etc., and after the evidence of the complainant was tendered, the petitioner sought to -3- tender evidence and before tendering his evidence, had filed an application under Section 45 of Indian Evidence Act, 1872, seeking that the Court refer the document, namely, the cheque in question for the opinion of an expert as to whether the signature was that of the petitioner. The Court having rejected that application, the petitioner is before this Court.
3. Strong reliance is placed on a judgment of the Supreme Court in the case of MRS. KALYANI BASKAR VS. MRS. M. S. SAMPOORNAM passed in Appeal (Crl.) No. 1293/2006 dated 11/12/2006. In the said case, the complainant had alleged that the appellant and her husband had committed an offence punishable under Section 138 of N.I.Act, and that the appellant along with her husband, had jointly signed and issued a cheque for discharge of -4- a legal liability and that it had been dishonoured for insufficient funds and though notice was served upon both the accused, there was no reply and after complying with all the formalities, complaint was lodged before the competent Court. The accused appeared and filed an application under Section 245 of The Code of Criminal Procedure, 1973, raising certain preliminary objections, firstly, that the accused had not signed the cheque nor issued it to the complainant; secondly, that the cheque in question was drawn from the individual account of the accused and therefore, as alleged by the complainant, the accused and her husband could not have jointly signed and issued the cheque; thirdly, that the signature on the cheque may be sent for an expert opinion to ascertain the bona fides of the same; and fourthly, that neither the appellant nor her husband owed any debt to the -5- respondent. The Magistrate dismissed the application on the ground that the genuineness of the signature could be questioned only at the time of trial of the complaint and thereafter trial had commenced and evidence of the respondent was recorded. The banker deposed that he had not verified the signature before returning the cheque in question, as dishonoured. In those circumstances, during the trial, the appellant had preferred an application and that having been rejected, the Supreme Court had opined that it ought not to have done so and that the appellant is entitled to rebut the case of the respondent and if the cheque relied on by the respondent for initiating criminal proceeding against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for examination and opinion of the handwriting expert -6- would deprive the appellant of an opportunity for rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. While arriving at this reasoning, Court had also observed the scope and effect of Section 243 of The Code of Criminal Procedure and therefore has opined that the Court could not have denied the application.
4. In the present case on hand, the complainant had filed the complaint along with the endorsement issued by the banker, as to the cheque being dishonoured for insufficient funds. Therefore there was no opinion expressed by the banker that the cheque had not been issued on account of the petitioner or that the signature did not match with that of the cheque. Therefore the contention that -7- the cheque was not issued on his account or that it did not bear his signature, is not prima facie established and the petitioner is assailing that it should be sent to an handwriting expert.
5. The question of sending any document to an handwriting expert is not a right vested to seek such a relief nor would it be a vested right of the complainant in a civil case. In both instances, there are enabling provisions which would provide power to the Court to send such documents for examination by an expert if the Court deems it necessary in its discretion, for otherwise, there is no vested right available to the parties. Secondly, the present proceedings for offence punishable under Section 138 of N.I.Act is a summary proceeding and the procedure adopted is as provided for a summons case. The discussion with reference to -8- Section 243 was therefore irrelevant and the application filed by the petitioner being under Section 45 of the Indian Evidence Act, 1872, also would not be relevant for, the law apparently does not provide for any such right in the petitioner to seek the relief of having the document referred to an expert. It is always in the discretion of the Court to seek an expert's opinion in a given circumstance. Thirdly, the large backlog of cases in Courts are that of cases for offences punishable under Section 138 of N.I.Act. Therefore the Act has been amended more than once to ensure that there is speedy disposal of the cases and a hybrid procedure is also prescribed for disposal of the cases under the provisions of the Negotiable Instruments Act. Therefore to dilate and apply the principles of criminal law in the strict manner, as sought to be canvassed, would defeat the very object of the -9- legislation. This is a stock defence taken by the accused in most cases and if in every case the document is to be referred, on the reasoning now sought to be canvassed, it would result in the entire volume of the cases under the Negotiable Instruments Act being postponed indefinitely. This shall not be permitted. In the present case on hand, there is no prima facie evidence on any such mischief in a bogus cheque having been produced as that of the petitioner. Therefore it is not possible to accept the arguments of the counsel for the petitioner.
The petition lacks merit and is rejected.
SD/-
JUDGE Rd/-