Delhi District Court
By This Order vs . on 14 May, 2008
IN THE COURT OF SH. SATISH KUMAR ARORA, MM, KKD,
DELHI
CC No. 139/08
Shuaib Akhtar ---------- Complainant
Vs.
Krishan kumar ---------- Accused
Order
By this order, the application u/s 243 and S. 245 Cr.P.C for
taking opinion of the handwritting expert, as filed by the accused shall
be disposed of.
Before taking note of the grounds taken up by the
accused/applicant, it is pertinent to state, in brief, facts of the present
complaint. Complainant, Shuaib Akhtar has filed the present complaint
against the accused Mr. Krishan Kumar u/s 138 NI Act stating therein
that the accused has issued, in favour of complainant, a cheque
bearing no. 323455 dated 12.01.08 for an amount of Rs. Two lakhs
drawn on Karnataka Bank Ltd., Laxmi Nagar Branch, Delhi. The said
cheque was issued towards the discharge of his liability having arisen
on account of his taking a friendly loan of Rs. Two lakhs from the
complainant in the month of November, 2007.
Page 5 of 5
It is alleged by the complainant that the said cheque when presented
was returned dishonoured with the report "Funds Insufficient" vide
bank return memo dated 16.02.08. It is further alleged that the
complainant got issued a legal notice dated 25.02.08 thereby calling
upon the accused to make the payment towards the dishonoured
cheque and on his failing to do so, face the criminal prosecution under
the provisions of Section 138 of Negotiable Instruments Act (in short,
S. 138 NI Act). Despite the due service of the legal notice, neither any
payment was made nor any reply was given by the accused. Therefore,
the present complaint against the accused u/s 138 NI Act.
Vide order dated 07.04.08, cognizance was taken and
process issued to the accused. Persuant to his service, accused
appeared and to the notice framed u/s 251 Cr.P.C, he pleaded not
guilty and claimed trial. Thereafter, matter was listed for complainant's
evidence. It is at this stage that the present application u/s 243 and S.
245 Cr.P.C has been moved by the accused. Through the application
prayer is made by the accused for sending the cheque in question to the
handwritting expert for the reasons hereinbelow mentioned-
1.That the accused has only signed the cheque in question and the other particulars have been filled by the complainant or his agent.;
Page 5 of 52. That the complainant is a stranger to the accused and accused owes no debt/ liability to the complainant.; and
3. That the complainant has misused and manipulated the cheque in question.
I have heard the respective submissions of the Learned counsel for the parties and perused the record carefully. It is pertinent to note here that neither the complainant nor any of his witnesses have been examined and cross-examined so far. The provisions, i.e. S.243 and S.245 Cr.P.C., under which the present application has been filed pertains to the stage when the accused has been called upon to lead the evidence or when the entire evidence from the prosecution/complainant's side has been led. Ld. Counsel for the accused places reliance upon the judgement of Hon'ble Kerela High Court in Bindu VS. Sreekantan Nair, 2007 (3) JCC (NI) 264 wherein the application of the petitioner/accused which was moved at the stage of defence evidence for sending the cheque for expert opinion was allowed for the reason that the accused had taken a consistent stand that except the signature, other entries were not made by her and Page 5 of 5 that the complainant had misutilized the blank signed cheque by making other entries as it pleased him. Ld. counsel for the complainant, on the other hand, places reliance upon the judgement of Hon'ble High Court of Delhi in Ravi Chopra Vs. State & Anr. 2008 ( 2) LRC 118 (Del.), whereby the order of Ld. MM dismissing the petitioner's application for sending the cheque in question to CFSL for opinion of handwritting expert, was uphled as correct. It was held that " where the accused facing the trial for the offence u/s 138 NI Act is disputing the signature on the cheque itself, then this is a permissible defence within the scope of S. 138 NI Act. In fact, an accused facing trial for this offence has a very limited range of defences to adopt. One is to show that the signature on the cheque is not that of the accused. The other is to show that there is no outstanding towards payment of debt. While the former can be proved through the evidence of an handwritting expert, the latter cannot possibly be proved in that manner".
From the aforesaid discussion, the present application of the accused merits dismissal for the reason that accused is not denying the drawing of cheque in question, what is denied by the accused is that the other entries in the cheque have been filled by the complainant or Page 5 of 5 his agent thereby suggesting that accused owes no debt/ liability to be complainant. Since the accused is denying the liability, there is no reason as to why the cheque, at a stage when evidence is to be led even from the complainant's side, be referred to opinion of handwritting expert. Once the complainant leads his evidence, the accused will be having full opportunity at the stage of defence evidence to rebut the presumption that the cheque in question has been issued by the accused towards the discharge of a legally enforceable debt/ liability. Even otherwise, S.243 & S. 245 Cr.P.C. envisage a stage when the complainant has already led his evidence. The accused, admittedly, is stating in his application that except the signatures on the cheque, he has filled nothing. Whether the complainant has manipulated and misused the cheque in question is to be decided when the evidence is led from both the sides. Hence, the court is of the opinion that no case is made out by the accused by way of present application for sending the cheque in question for handwritting expert opinion. The present application is premature and has been filed just to protract the proceedings in the present complaint. The application u/s 243 & S. 245 Cr.P.C. as filed by the accused is dismissed with cost of Rs. 2000/-, Rs. 1000/- to be deposited in legal aid.
Matter be listed for CE for 30.05.08.
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