Rajasthan High Court - Jaipur
Guganram vs State Of Raj And Anr on 30 May, 2019
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 1267/2018
Guganram S/o Shri Nethram, By Caste- Mahajan, R/o Near
Shyam Mandir, Surajgarh Mandi, Tehsil- Chidawa, District-
Jhunjhunu
----Petitioner
Versus
1. State Of Rajasthan Through Pp.
2. Kamleshwar Singh S/o Shri Chandigiram, By Caste- Jat,
R/o Gidaniya, Chidawa, Jhunjhunu, Rajasthan.
----Respondents
Connected With S.B. Criminal Miscellaneous (Petition) No. 6602/2017 Kamleshwar Singh S/o Shri Chandagiram B/c Jat, R/o Gidaniya, Chidawa, Jhunjhunu, Raj.
----Petitioner Versus
1. State Of Rajasthan Through P.p.
2. Guganram S/o Shri Nethram B/c Mahajan, R/o Near Shyam Mandir, Surajgarh Mandi, Tehsil Chidawa, Distt. Jhunjhunu.
----Respondents S.B. Criminal Miscellaneous (Petition) No. 7641/2018 Yusuf Ali S/o Shri Khan Mohammad Khan B/c Musalman, R/o Gidaniya, Tehsil Chirawa, District Jhunjhunu, Raj.
----Petitioner Versus
1. State Of Rajasthan, Through Pp.
2. Vinod Kumar Jangid S/o Shri Mahaveer Prasad B/c Khti, R/o Ward No.18, Chirawa, Tehsil Chirawa, District Jhunjhunu, Raj.
----Respondents S.B. Criminal Miscellaneous (Petition) No. 7642/2018 Yusuf Ali S/o Shri Khan Mohammad Khan B/c Musalman, R/o Gidaniya, Tehsil Chirawa, District Jhunjhunu, Raj.
----Petitioner Versus
1. State Of Rajasthan, Through Pp.
2. Kamleshwar Singh S/o Shri Chandgi Ram B/c Jat, R/o Gidaniya, Tehsil Chirawa, District Jhunjhunu, Raj.
----Respondents S.B. Criminal Miscellaneous (Petition) No. 7644/2018 (Downloaded on 29/06/2019 at 05:16:36 AM) (2 of 9) [CRLMP-1267/2018] Yusuf Ali S/o Shri Khan Mohammad Khan B/c Musalman, R/o Gidaniya, Tehsil Chirawa, District Jhunjhunu, Raj.
----Petitioner Versus
1. State Of Rajasthan, Through Pp.
2. Dhiraj Kumar S/o Shri Kamleshwar Singh B/c Jat, R/o Gidaniya, Tehsil Chirawa, District Jhunjhunu, Raj.
----Respondents S.B. Criminal Miscellaneous (Petition) No. 7660/2018 Yusuf Ali S/o Shri Khan Mohammad Khan B/c Musalman, R/o Gidaniya, Tehsil Chirawa, District Jhunjhunu, Raj.
----Petitioner Versus
1. State Of Rajasthan, Through Pp.
2. Sachin Kumar S/o Shri Kamleshwar Singh B/c Jat, R/o Gidaniya, Tehsil Chirawa, District Jhunjhunu, Raj.
----Respondents For Petitioner(s) : Mr. Gunjan Pathak with Ms. Ishita Rawat in CRL.M.Pet.
1267/2018, 7641/2018, 7642/2018, 7644/2018 and 7660/2018 Mr. Punit Singhvi in CRL.M. Pet.
6602/2017
For State : Mr. Arvind Kumar, PP
For Respondent No.2 : Mr. Gunjan Pathak in CRLMP.
No.6602/2017
HON'BLE MR. JUSTICE PANKAJ BHANDARI
Judgment / Order
30/05/2019
1. Petitioner-Guganram has preferred Criminal Miscellaneous Petition No.1267/2018 aggrieved by order dated 31.01.2015, 16.11.2017 & 07.12.2017 passed by Judicial Magistrate, Chirawa and petitioner-Kamleshwar Singh has preferred Criminal Miscellaneous Petition No.6602/2017 for quashing of F.I.R. No.395/2017 filed by petitioner Guganram. (Downloaded on 29/06/2019 at 05:16:36 AM)
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2. It is contended by counsel for the petitioner that the cheque in question was issued for a sum of Rs.69,000/- (Rupees Sixty Nine Thousand Only). Complainant has added a zero in the figure and has lodged the cheque of Rs.6,90,000/- (Rupees Six Lac Ninety Thousand Only).
3. It is contended that petitioner is a Government employee working as Clerk in a school. His bank account and income tax return do not depict giving of any advance to the petitioner. It is also contended that petitioner had filed two complaints in his name and complaints have also been filed by his sons against Yusuf Ali, wherein, cheque amount of Rs.20,000/- (Rupees Twenty Thousand Only) was changed to Rs.1,20,000/- (Rupees One Lac Twenty Thousand Only) for Cheque No.174463, Rs.3,20,000/- (Rupees Three Lac Twenty Thousand Only) for Cheque No.174462, Rs.2,20,000/- (Rupees Two Lac Twenty Thousand Only) for Cheque No.174465 & Rs.2,20,000/- (Rupees Two Lac Twenty Thousand Only) for Cheque No.174464. Though the said files pertained to different cheque dishonour cases but the same have been got tagged with present case just to depict the conduct of the complainant.
4. It is contended that complainant is a Government employee working as Clerk. As per Government rules, he is not permitted to advance loans without seeking prior sanction of the Government.
5. It is contended that prayer was made for sending the cheque to FSL, the dismissal of the application on the ground that the cheque was dishonoured due to insufficient funds and not due to non-matching of signature is not proper as every person is presumed to be innocent till proven guilty and once the law places (Downloaded on 29/06/2019 at 05:16:36 AM) (4 of 9) [CRLMP-1267/2018] burden on the accused, Court must have given him opportunity to discharge the burden.
6. It was also observed in "O.P. Sharma vs. Ashok Bohara" (S.B. Criminal Miscellaneous Petition No.2342/2010) decided by Co-ordinate Bench of this Court on 11.08.2011 that genuineness of signatures cannot be decided without seeking opinion of an expert. Similar view was taken by the Rajasthan High Court in "Hanuman Sahay Sharma vs. Manish Dhamani"
2012 SCC Online Raj 3612 (2013) 2 RLW 1410 2013 Cri LJ 370 (2013) 5 RCR (Cri) 662 (2014) 5 RCR (Civil) 315 (2013) 1 WLC
56.
7. Reliance has also placed on "T. Nagappa vs. Y.R. Muralidhar" 2008 05 SCC 633, wherein Apex Court has held that an accused has a right to fair trial and adduce evidence for that prupose. It further held that request of the accused to send the cheque to the Forensic Examination was bonafide.
8. The Apex Court in "Kalyani Baskar vs. M.S. Sampoornam" (2007) 2 SCC 258, held that prayer of the accused to send the cheque for opinion of handwriting expert to ascertain genuineness of signature should be allowed unless Court is of view that the object of the accused was to delay the criminal proceedings.
9. It is contended that petitioner obtained report from an independent handwriting expert, wherein, handwriting expert has opined that zero was added later on in the cheque.
10. It is contended that petitioner moved an application before the concerned Court to send the cheque to State Forensic Science Laboratory to obtain report from handwriting expert regarding (Downloaded on 29/06/2019 at 05:16:36 AM) (5 of 9) [CRLMP-1267/2018] interpolation in the cheque which application was rejected by the Court vide order dated 31.01.2015.
11. It is contended that petitioner moved another application with a prayer that bank account details and income tax return of the complainant be called for, to establish whether he was having the capacity to advance money to the complainant to the tune of Rs.6,90,000/- (Rupees Six Lac Ninety Thousand Only) in July, 2011. The said application was also rejected by the Court.
12. It is argued that Apex Court in "Basalingappa vs. Mudibasappa" 2019 SCC Online SC 491, observed that heavy burden is put on the complainant when there is an averment that huge amount has been advanced by him to different persons.
13. It is contended that petitioner moved another application for dismissing the complaint which was rejected by the Court on 07.12.2017.
14. Counsel for the petitioner has drawn my attention to Petitions filed by Yusuf Ali to apprise the Court of the facts that complainant is in a habit of forging the cheque and changing the amount in the cheques by adding figure.
15. Counsel for the complainant has opposed the present Criminal Miscellaneous Petition. His contention is that heavy burden lies on the complainant and it is for the complainant to prove that he has the financial capacity to advance loan, failing which his complaint might be dismissed by the Court. It is contended that there was no justification for sending the cheque to the State Forensic Science Laboratory as the cheque was not dishonoured on account of interpolation in the cheque but was dishonoured due to insufficient funds.
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16. It is contended that petitioner was not a Government employee on the date when the money was advanced. He was subsequently absorbed in the Government in the year 2012.
17. It is also contended that complainant and his family members are having 125 Bighas of land. Petitioner has agricultural income and he has advanced the petitioner from his agricultural income and he is not required to furnish his bank details or income tax return to establish that he has advanced Rs.6,90,000/- to the petitioner.
18. It is also contended that in the cases referred to by the counsel for the petitioner, Court had rejected the prayer for sending the cheques to F.S.L and Court has already convicted Yusuf Ali.
19. Counsel for the complainant has placed reliance on "O.P. Sharma vs. Ashok Bohara" (supra), wherein the High Court has held that if the cheque is dishonoured for insufficient fund and accused is questioning his signature on the cheque the proper course available to him is to call the banker in his defence evidence.
20. Reliance has also been placed on "Shivdayal Sharma vs. Sudeep Karnawat" 2016 SCC Online Raj. 3034 (2017) 1 RCR (Cri.) 277 (2017) 1 RCR (Civil) 428 & "Manoj Sharma vs. Anil Aggarwal" 2012 SCC Online Del 2240 (2013) 2 BC (CN B) 25 (2013) 5 RCR (Civil) 582 (2013) 1 CCC 287, wherein allegation was that cheques were filled in by the complainant. It was held by the Court that it is not mandatory and no law prescribes that the body of the cheque should also be written by the signatory to the cheque.
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21. It is contended that under Section 139 of the Negotiable Instruments Act the burden of proof is on the accused and accused has not filed any reply to the notice under Section 138 of the N.I. Act, hence, the Court below has not committed any error in rejecting the application filed by the accused.
22. I have considered the contentions and have carefully perused the record of the case.
23. It is the defence of the petitioner Guganram that he had given a cheque of Rs.69,000/- (Rupees Sixty Nine Thousand Only) and a zero was added, the cheque was interpolated and same was made Rs.6,90,000/- (Rupees Six Lac Ninety Thousand Only).
24. From the report of handwriting expert furnished by the petitioner, it is revealed that zero in the sum of Rs.69,000/- was added to make it Rs.6,90,000/- sending the original cheque to the State Forensic Science Lab would lay at rest the allegation levelled by the petitioner if the cheque is genuine and no interpolation is done there is no reason why complainant has an objection to the sending of the cheque to the State Forensic Science Laboratory.
25. Since Yusuf Ali has been convicted, this Court does not deem it proper to deal with the facts of that case.
26. It is argued by counsel for the complainant that he was absorbed in the Government service in the year 2012, whereas, the complainant himself has deposed before the Court that he is in Government employment since 1989. A Government employee of the level of a Clerk, advancing a sum of Rs.6,90,000/- and that too not through bank transfer but by cash, raises doubt on the case of the complainant, hence, this Court deems it proper to invoke the inherent powers and direct the Court below to send the cheque to the State Forensic Science Laboratory to inquire as to (Downloaded on 29/06/2019 at 05:16:36 AM) (8 of 9) [CRLMP-1267/2018] whether the figure zero was subsequently added. Further, this Court also deems it proper to direct the complainant to furnish his bank details of the year 2010 to 2012 and his income tax returns for the said period to establish that he has the capacity to advance the amount mentioned in the cheque.
27. Accordingly, orders dated 31.01.2015 & 16.11.2017 passed by the Courts below are quashed.
28. As far as order dated 07.12.2017 is concerned, this Court does not find any error in the said order vide which prayer was made by the petitioner for quashing of the cognizance order, to that extent the order dated 07.12.2017 is upheld.
29. Criminal Miscellaneous Petition No.1267/2018 is accordingly partly allowed.
30. Now coming to the Criminal Miscellaneous Petition No.6602/2017 filed by the accused for quashing of F.I.R. No.395/2017, this Court is of the considered view that the F.I.R. discloses commission of cognizable offence. There is allegation in the F.I.R. that amount of Rs.69,000/- was interpolated to Rs.6,90,000/-. Even though there is delay in lodging of the F.I.R. but stalling the proceedings pending before the Police would result in miscarriage of justice.
31. There is no ground for quashing of the F.I.R. The Criminal Misc. Petition No.6602/2017 filed by the petitioner for quashing of the F.I.R. is dismissed.
32. Criminal Miscellaneous Petition No.1267/2018 filed by the petitioner is partly allowed. Orders dated 31.01.2015 & 16.11.2017 are quashed and order dated 07.12.2017 is upheld.
33. Trial Court is directed to send the cheque to the State FSL and to summon the bank details and income tax return of the (Downloaded on 29/06/2019 at 05:16:36 AM) (9 of 9) [CRLMP-1267/2018] complainant. Trial Court would be free to call for explanation from the complainant as to whether before advancing the money he has sought permission from the Government and considering the explanation, if not satisfied with the explanation direct the Government for taking appropriate action.
34. It is informed by the counsel for the petitioner that in the Criminal Miscellaneous Petition Nos.7641/2018, 7642/2018, 7644/2018 & 7660/2018, petitioner-Yusuf Ali has been convicted by the Court below, the Criminal Miscellaneous Petitions have become infructuous.
35. The Criminal Miscellaneous Petition Nos.7641/2018, 7642/2018, 7644/2018 & 7660/2018 are accordingly dismissed as having become infructuous.
36. Stay applications stand disposed.
37. Copy of this order be placed in the connected files.
(PANKAJ BHANDARI),J AMIT KUMAR /55-60 (Downloaded on 29/06/2019 at 05:16:36 AM) Powered by TCPDF (www.tcpdf.org)