Allahabad High Court
Smt. Shweta Tiwari vs State Of U.P. And 3 Others on 19 August, 2019
Author: Rajiv Joshi
Bench: Rajiv Joshi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 72 Case :- APPLICATION U/S 482 No. - 30658 of 2019 Applicant :- Smt. Shweta Tiwari Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ramesh Chandra Agrahari Counsel for Opposite Party :- G.A. Hon'ble Rajiv Joshi,J.
Heard Sri Ramesh Chandra Agrahari, learned counsel for the applicant, Sri Prakhar Tandon, learned counsel for the opposite party nos. 2 to 4 and learned AGA for the State.
Present application under Section 482 Cr.P.C. has been filed for quashing the order dated 11.7.2019 passed by the Additional Session Judge, Court No. 8, Kanpur Nagar in Criminal Appeal No. 148 of 2018 (Smt. Sweta Tiwari Vs. State of U.P. and others), whereby the application filed by the accused-applicant for calling the handwriting expert report, has been rejected.
It reflects from the record that the applicant was convicted for three years imprisonment and Rs. 1,50,000/- towards compensation vide order dated 01.08.2018 in Complaint Case No. 1169 of 2014. Against that order, appeal no. 148 of 2018 was filed by the applicant, which is pending. During the pendency of the appeal, an application (16-kha) supported by an affidavit (17-kha) was filed on the ground that contents of the cheque are not in her own handwriting except the signature and therefore, the report in this regard may be called from the expert. The application was rejected on the ground that earlier the applicant filed the application on the similar ground, which was rejected on 4.5.2017 and in view of Section 118 of the Indian Evidence Act, if the signature on the cheque is admitted and if the contents of the cheque are not in the handwriting of the accused, the same does not make any difference.
The contention of learned counsel for the applicant is that he denied the contents of the cheque except her signature and therefore, the report of handwriting expert must be called.
In support of his contention, learned counsel for the applicant placed reliance on the judgment of the Apex Court in the case of T. Nagappa Vs. Y R Muralidhar 2008 LawSuit (SC) 590 and submits that when a contention has been raised that the complainant has misused the cheque, even in a case where presumption can be raised under Section 118 (a) or 139 of the said Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof.
There is no dispute with regard to the proposition of law laid down by the Apex Court and if no opportunity has been given to the applicant by the trial court, the applicant is entitled for the benefit of the same. In this case law, there is no mention for calling the report of handwriting expert is necessary and this would be seen at the time of hearing of the appeal.
On the other hand, learned counsel for the opposite party no.2 relied upon the judgment of the Apex Court in Criminal Appeal Nos. 230-231 of 2019, Bir Singh Vs. Mukesh Kumar. Relevant paragraph of the said judgment is quoted hereunder:
"A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted."
From perusal of the aforesaid paragraph, it is apparent that there is no presumption that under Sections 20, 87 and 139, the person who sign the cheque makes it over to the payee remain liable unless he adduced evidence to rebut the presumption. However, it is immaterial that cheque may be filled by an person other than the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 of the N.I. Act would be attracted.
I do not find any illegality or infirmity in the order passed by the trial court rejecting the application of the accused-applicant for calling the report of handwriting expert.
The application lacks merit and is, accordingly, dismissed.
Order Date :- 19.8.2019 Noman