Karnataka High Court
M.D. Usman S/O K. Ahamadsab vs H.A.Mohammed Akram S/O Fakkersab on 27 June, 2023
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2023:KHC-D:6364
CRL.P No. 102389 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL PETITION NO. 102389 OF 2019
BETWEEN:
M.D. USMAN S/O. K. AHAMADSAB,
AGED ABOUT 62 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O: WARKODI,
M. GUDDEKOPPA -POST: 577418,
HOSANAGAR -TALUK,
SHIVAMOGGA -DISTRICT.
...PETITIONER
(BY SRI. H.R. GUNDAPPA, ADVOCATE)
AND:
CHANDRASHEKAR
H.A. MOHAMMED AKRAM S/O. FAKKERSAB,
LAXMAN
KATTIMANI
AGED ABOUT 42 YEARS,
OCC: BUSINESS,
R/O: HOUSE NO.29,
MADEENA COLONY,
BHATKA POST AND TALUK -581320,
Digitally signed by
CHANDRASHEKAR UTTARA KANNADA -DISTRICT.
LAXMAN
KATTIMANI ...RESPONDENT
Date: 2023.07.10
11:24:06 -0700
(BY SRI. MAHESH WODEYAR, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. SEEKING TO ALLOW THIS CRIMINAL PETITION BY
SETTING ASIDE THE IMPUGNED ORDER DATED 13.11.2019
PASSED BY THE PRL. CIVIL JUDGE & JMFC COURT, BHATKAL,
IN C.C.NO.37/2018, ON THE I.A. FILED BY THE PETITIONER
FOR SEEKING EXPERT OPINION ON THE DOCUMENT,
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NC: 2023:KHC-D:6364
CRL.P No. 102389 of 2019
REGARDING HANDWRITING, SUBJECTED CHEMICAL ANALYSIS
TO KNOW THE SIGNATURE AS WELL AS FOR FILING THE
CONTENTS OF THE SAID CHEQUE THE ALLEGED OFFENCES
P/U/S 138 OF NI ACT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Shri. H. R. Gundappa, l earned counsel for petitioner and Shri. Mahesh Wadeyar, learned counsel for respondent.
2. The present petition is filed under section 482 with the following prayer:
"WHE RE FORE , it is prayed that this Hon'ble Court may be pleased to call for records and allow this Criminal Petition, b y setting asid e the impugned Ord er dated 13.11.2019, pas sed by the Principal Civil Judge and JMFC Court at Bhatkal, in C.C.No.37/2018, on the I .A. filed by the petitioner for seeking Expert Opinion on the docume nt, regarding handwriting, subjected chemical an alysis to know the sign ature as well as for filing the conte nts of the said cheq ue o f the al leged offence und er Section 138 of N. I . Act, by allowing this Criminal Petition , in the interest of justice and eq uity." -3-
NC: 2023:KHC-D:6364 CRL.P No. 102389 of 2019
3. Brief facts of the case are as under:-
Accused has been facing the trial for the offence punishable under Sect ion 138 of the Negotiable Instruments Act (for short 'N.I. Act') filed at the instance of respondent in respect of the cheque which has been given by the petitioner to the respondent towards the legally recoverable debt. The fact of dishonor of cheque was intimated to the petitioner by issuing statutory notice and the same is served on the petitioner on 27.11.2017 and there is no reply to the callings of notice. As such, respondent initiated the action against the pet itioner for the offence punishable under Sect ion 138 of N.I. Act.
4. During the course of trial, an application came to be filed under Section 45 and 73 of the Indian Ev idence Act, 1872 by the accused seeking for referring the disputed cheque to the handwriting expert as he is disputing the signature found in the cheque.
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NC: 2023:KHC-D:6364 CRL.P No. 102389 of 2019
5. The said application was objected by the respondent/complaint by filing written object ions.
6. Learned Trial Magistrate after hearing the parties, passed an order rejecting the application on 13.11.2019. Thereafter petitioner is before this Court.
7. Reiterating the grounds urged in the petition, Shri. H. R. Gundappa, learned counsel for the petitioner vehement ly contended that the cheque was given in trust by t he petitioner to the respondent during the course of mining business and the sam e has been misused by the respondent/complainant by forging the signatures found in the cheque and therefore sought for allowing the pet it ion.
8. Per contra, Shri. Mahesh Wadeyar, learned counsel for the respondent/complainant, denies the allegations le veled against the respondent that he has forged the signatures of the petitioner and there is no reply to the leagal -5- NC: 2023:KHC-D:6364 CRL.P No. 102389 of 2019 notice by petitioner. Therefore sought for reject ion of the petition.
9. I n view of the rival contentions of the parties, this Court perused the material on record meticulously.
10. On such perusal of the material on record, it is seen that issuance of the cheque i s not in dispute. According to the petitioner, the same was given in trust to the respondent when petitioner and respondent were carrying on the mining business. According to the petitioner, the said cheque wa s given in b lank and the same is forged by the complainant .
11. I t is pertinent to note that the cheque was dishonored on the ground that "Funds Insufficient" and not on the ground that the "signature not tallying" . Further, the legal notice issued by the complainant before institut ion of the criminal complaint against he petitioner herein -6- NC: 2023:KHC-D:6364 CRL.P No. 102389 of 2019 though duly served on the petitioner, the same was not even replied by the pet itioner herein.
12. Further, no posit ive action is also ta ken by the petit ioner herein soon after he entered the appearance before learned Trial Magistrate in respect of dishonored of cheque either by filing a criminal complaint aga inst the compla inant /respondent or at least issuing a legal notice that the cheque has been forged and misused.
13. Under such cir cumstances , the petit ioner seeking for referring the cheque to the handwriting expert is nothing but protract ing the proceedings before learned Trial Magistrate and the same has been rightly appreciated by learned Trial Magistrate while rejecting the application filed by petitioner herein.
14. Hence, this Court is of the cons idered opinion that the grounds urged in the pet it ion are hardly sufficient to allow the petit ion prayer. -7-
NC: 2023:KHC-D:6364 CRL.P No. 102389 of 2019
15. Hence, the following order is passed:
ORDER Admission declined.
Petition dismissed.
Sd/-
JUDGE SMM List No.: 2 Sl No.: 22