Rajasthan High Court - Jodhpur
Vishnu Kumar vs Jagdish Prasad on 3 August, 2010
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. CRIMINAL MISC. PETITION NO.975/2008
(Vishnu Kumar Vs. Jagdish Prasad)
Date of Order : 03.08.2010
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
Mr. N.L. Joshi, for the petitioner.
Mr. Mahipal Bishnoi, Public Prosecutor.
Mr. Chaitanya Gehlot, for complainant.
In this misc. petition filed under Section 482 Cr.P.C., the petitioner is challenging the order dated 11.6.2008 passed by Sessions Judge, Churu in Criminal Revision No.128/2007 by which the learned Sessions Judge, Churu affirmed the order dated 10.9.2007 passed by Chief Judicial Magistrate, First Class, Churu in Criminal Case No.255/2007 whereby learned trial Court dismissed the application filed by the petitioner under Section 45 of the Evidence Act.
Brief facts of the case are that in a case filed against the petitioner under Section 138 of N.I. Act, the petitioner filed an application under Section 45 of the Evidence Act with the prayer that cheque in question may be sent to FSL for hand writing report. The said prayer was made by the petitioner on the ground that stand of the petitioner in the proceedings is that 2 cheque in question signed by him was lost and he published a notice in the newspaper despite that bank returned the said cheque to the complainant with the remark of in-sufficient fund instead of informing the petitioner.
In the application, filed by the petitioner under Section 45 of the Evidence Act, it is prayed that though the petitioner is admitting his signature upon the cheque but for the purpose of ascertaining other hand writing of the cheque, the matter may be sent to the hand writing expert. But learned trial Court dismissed the said application on the ground that the petitioner is admitting his signature upon the cheque and took defence that the said cheque was lost but Bank has returned the cheque with the report of in-sufficient funds, therefore, if the petitioner is admitting his signature upon the cheque then only on the basis of the defence taken by the petitioner, it is not necessary to send the cheque to the hand writing expert for the purpose of taking opinion for other hand writing on the cheque except the signature.
Learned counsel for the petitioner submits that the application filed by the petitioner was dismissed by the trial Court on 10.09.2007, against which, the petitioner preferred a revision petition, that too, has been dismissed by the revisional Court vide order dated 11.6.2008, which is illegal and have no foundation to stand because for the purpose of petitioner's defence, it was the 3 duty of the learned trial Court to sent those documents to ascertain the hand writing upon the cheque but learned trial Court has filed to exercise its jurisdiction left with the Court under Section 45 of the Evidence Act. Therefore, both the orders passed by trial Court as well as by revisional Court deserve to be quashed and a direction may be issued to the trial Court to send the cheque to the hand writing expert to ascertain the hand writing upon the cheque except signatures. Learned counsel for the petitioner has invited the attention of this Court towards the judgments reported in 2006 (2) R.Cr.D. 238 (Raj.), 2007 Cr.L.R. (SC) 453, 2007 Cr.L.R. (SC) 457, RLW 2009 (1) (Raj.) 167, 2008 AIR SCW 3349, 2008 AIR SCW 1691 and 2009 (3) WLC (Raj.)
132. Per contra, learned counsel appearing on behalf of respondent argued that the application under Section 45 of the Evidence Act has been filed by the petitioner only to delay the trial of the case because when initially after dishonour of the cheque when notice was sent to the petitioner by the complainant, then no reply was given by him and after filing complaint in the Court he is taking defence while admitting his signatures upon the cheque. Meaning thereby, the defence now taken by the petitioner that cheque in question was lost, therefore, the cheque may be sent to the hand writing expert, is not tenable. Learned trial Court has rightly observed that the 4 petitioner is not disputing his signatures upon the cheque and other grounds shall be considered at the time of final adjudication, therefore, there is no error in the orders impugned passed by both the Courts below.
I have considered the rival submission made by both the parties.
Admittedly, the petitioner is not disputing his signatures upon the cheque. It is also admitted position of the case that in pursuance of the notice sent by the complainant-non- petitioner, initially when the cheque was dishonoured by the Bank, no reply was given by the petitioner. Thereafter, when the complainant filed complaint under Section 138 of N.I. Act, then in the proceedings the petitioners is taking the defence that the cheque in question was lost and other part of the hand writing except the signatures were not filled in by the petitioner, therefore, for the said purpose, the cheque may be sent for FSL. I find no ground for interference in this matter because when first opportunity was given to the petitioner to reply the notice, which is sent by the complainant, at that time, no such defence was taken by the petitioner nor any reply was given by the petitioner to the complainant. Thereafter, complainant filed complaint before the trial Court under Section 138 of N.I. Act on the basis of so called cheque and petitioner is admitting his signatures upon the cheque, therefore, at this stage, in my opinion, no error 5 has been committed by the trial Court as well as by revisional Court to refuse the prayer of the petitioner for sending the cheque to the hand writing expert because the defence which is taken by the petitioner in the trial Court can be considered at the time of final adjudication of the matter. Further, the facts of the judgments cited by learned counsel for the petitioner are altogether different because in none of the case the accused was accepting his signatures upon the cheque. But, here in this case, the petitioner is accepting his signatures upon the cheque in question and no reply whatsoever has been given by the petitioner with regard to this defence when initially notice was sent to him by the complainant when cheque was dishonourned by the Bank due to in-sufficient funds.
In this view of the matter, no case is made out for interference while exercising power under Section 482 Cr.P.C. Hence, this misc. petition is dismissed.
(GOPAL KRISHAN VYAS), J arun