Karnataka High Court
M D Ramakrishnaiah vs V Javaregowda on 1 April, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 01ST DAY OF APRIL, 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No. 519 of 2013
BETWEEN:
M.D. Ramakrishnaiah,
Son of Late M. Devasetty Gowda,
Aged about 63 years,
No.129, 3rd Main,
3rd Phase, 3rd cross,
Basaveshwaranagar,
Bangalore - 560 079. ...PETITIONER
(By Shri. B. Anand, Advocate)
AND:
V. Javaregowda,
Son of Veerannagowda,
Aged about 62 years,
2nd 'C' Cross,
Nethravathi Road,
Girinagar,
Bangalore - 560 085. ...RESPONDENT
(By Shri. H.P. Leeladhar, Advocate)
2
This Criminal Petition is filed under Section 482 code of
Criminal Procedure, 1973, praying to quash the order dated
10.10.2012 passed by the XII Additional Chief Metropolitan
Magistrate, Bangalore, in C.C.No.29098/2009.
This petition is coming on for Admission this day, the
court made the following:
ORDER
Heard the learned counsel for the petitioner.
2. The petitioner is accused of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act' for brevity). In the course of the proceedings, before the trial court, the petitioner had set up a defence that though he had issued a cheque signed in blank, it was not meant to be utilized for the purpose of the transaction claimed by the respondent. It is his allegation that without any consideration and without any legal liability, the respondent herein had misused the cheque leaf that was issued duly signed by him and has been filed up indicating a sum of Rs.10,00,000/- as being the amount for which the cheque had been issued and it is on that basis that the complaint has been 3 filed. The petitioner had filed an application before the trial court seeking appointment of a finger print expert to declare that the cheque was filled up by some other person other than the petitioner, though the signature was admitted and the court below having rejected that application, the petitioner had approached this Court. This Court disposed of the petition filed by the petitioner with an observation that after completion of the evidence in the matter, the petitioner was at liberty to move the trial court over again seeking appointment of a hand-writing expert to furnish his opinion, if it was so warranted. Such an application having been made after the evidence was completed, the court below has rejected the application. It is that which is sought to be questioned in this petition seeking quashing of the order of the court below.
3. Admittedly, the petitioner had signed the cheque in question. It is his defence that it was issued as a security for due repayment of certain sums of money which was duly repaid. The cheque was being misused by the complainant 4 while having falsely filled up the cheque for a sum of Rs.10,00,000/-.
4. In the above circumstances, if the petitioner admits his signature while disputing the hand writing on the cheque leaf, which difference would be apparent to the naked eye, there is no need for the court to seek the assistance of a hand-writing expert. It is always the privilege of the court in seeking such assistance, if necessary, to appoint one. Therefore, the petitioner's claim as a matter of right to seek that the cheque leaf be referred to a hand-writing expert, and that request having been rejected by the court below, cannot be said to be without jurisdiction or without application of mind. Admittedly, if the cheque leaf is not filled up by the petitioner in his own hand and if it is discernable to the naked eye, no opinion of a hand-writing expert is necessary. If on the other hand the petitioner claims that he has repaid the amount that was due and the cheque was issued as a security and that there was no legal liability outstanding, the burden of proof is on the 5 petitioner to establish the same. Nothing would turn on the hand-writing expert's opinion that the hand-writing on the cheque leaf is different from the hand-writing of the petitioner, if his signature is admitted on the cheque leaf. Therefore, the petition is rejected.
All defences available to the petitioner insofar as the absence of legal liability or that the contents of the cheque leaf were not filled up by him and were never intended to be filled up and it has been done illegally by the respondent, are aspects that are not addressed by this court. It is for the petitioner to urge the contentions that are available to him and for the court below to consider the same in accordance with law. With those observations, the petition stands disposed of.
Sd/-
JUDGE KS