TMI Blog2008 (2) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 138 NI Act in the court of learned MM on 18th March, 2002 with regard to the dishonour of two cheques: cheque No. 315106 dated 20th August, 2001 for a sum of ₹ 20 lakhs and cheque No. 315108 dated 28th December, 2001 for a sum of ₹ 32 lakhs. The allegation in the complaint was that the respondent Swaraj Pal Singh had issued the aforementioned cheques in favor of the complainant towards discharge of an admitted liability. Both cheques were, on presentation to the bank for payment, dishonoured with the remarks insufficient funds. After issuing notices demanding payment, the petitioner filed the aforementioned complaint. 3. On 17th September 2002 the learned MM passed a summoning order. The application by the respondent recalling the summoning order was dismissed by the learned MM an order dated 9th February 2004. One of the contentions raised by the respondent in support of prayer for recalling the summoning order was that the cheques in question were entrusted to the complainant as a part of the business transactions between the parties and were not meant to be encashed. It was stated that the cheques had been tampered with, filled by the complainant or his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has become final. 7. The Respondent also filed an application under Section 311 CrPC for recalling the complainant. By a detailed order dated 8th March 2006, the learned MM dismissed this application. Crl. Rev. P. No. 45 of 2006 filed by the respondent against the said order was dismissed by learned ASJ by another detailed order dated 20th March 2006. 8. After the dismissal of aforementioned revision petitions the respondent moved applications for adjournment. On 23rd March 2006 part arguments were heard. Adjournment was granted on 30th March 2006 and 3rd April 2006. The matter was fixed for judgment on 10th April, 2006. On that date the application filed by the respondent for referring the matter to the mediation cell was dismissed and the case adjourned to 17th April, 2006. The respondent then filed a transfer application before learned Chief Metropolitan Magistrate ('CMM'). Without notice to the accused, the case was transferred to the court of another learned MM. Again the case was adjourned for final arguments for 22nd May, 2006. Further adjournments were granted on 11th July, 2006 and 22nd July, 2006. Thereafter Shri Sunil Chaudhary, the learned MM passed an ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during his examination as a defense witness DW 1. (iv) It is submitted that what was relevant for the offence under Section 138 NI Act was that the cheque in question must be signed by the drawer. The mere fact that the payee's name and amount are not in the handwriting of the drawer did not invalidate the cheque. It is accordingly submitted that there was no occasion for the learned MM to suo motu refer the cheques in question for the opinion of handwriting expert in the CFSL. Reliance was placed on the judgments in Lillykutty v. Lawrance 2003(2) DCR 610, Rajpal Singh v. State of Uttaranchal and Ors. 2005(2) DCR 703, P.S.S. Thamotharan v. Dalmia Cements (B) Limited 2005 (1) DCR 85, Bhaskaran Chandrashekharan v. Radhakrishnan 1998 (1) KLT 881, Ganadhara Panicker v. Haridasan 1989 (2) KLT 730, Mangal Singh v. Khurana Chemicals 2006 (2) DCR 145 and Inderchand v. Gokul 2006 (2) DCR 589. (v) In terms of Section 118 NI Act there was presumption that every negotiable instrument bearing a date was made or drawn on such date and the burden of proving the contrary was on the person alleging that the said cheque had been obtained by fraud. It is accordingly submitted that the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws that as per the order dated 31.08.05 two applications were moved on behalf of the accused. However, subsequently to that there is nothing to show that the said applications were either pressed or disposed off. In fact the accused had moved an application dated 17.08.05 for summoning defense evidence which was allowed vide order dated 13.09.05. Thereafter as well opportunities were granted to the accused for defense evidence, which was closed on 17.12.05. In the application dated 31.08.05 it was averred that the complainant had misused the cheques given to him as part of business understanding and had filled in the cheques himself in different inks and different hand writing and this fact needs to be examined after examination by the hand writing expert in order to determine the actual reality pertaining to the cheques. It is averred that prima facie from the face of it, it is clear that the cheques have been misused by the complainant as the same were never issued towards discharge of any liability. It is averred that the cheques be sent to hand writing expert in the CFSL Lab at Hyderabad to know whether the cheques have been filled in different hand writings and different inks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the accused before the High Court a grievance is sought to be made out that the Magistrate's order will work prejudice to the defense and enable the prosecution to fill gaps and loopholes in its case. This contention was devoid of force. Once a Magistrate in seisin of a case, duly forms an opinion that the assistance of an expert is essential to enable the Court to arrive at a just determination of the issue of the identity of the disputed writing, the fact that this may result in the filling of loopholes in the prosecution case is purely a subsidiary factor which must give way to the paramount consideration of doing justice. Moreover, it could not be predicted at this stage whether the opinion of the Government Expert of Questioned Documents would go in favor of the prosecution or the defense. The argument raised before the High Court was thus purely speculative. 28. In addition to Section 73, there are two other provisions resting on the same principle, namely, Section 165, Evidence Act and Section 540 Cr.P.C., 1898, which between them invest the Court with a vide discretion to call and examine any one as a witness, if it is bona fide of the opinion that his examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fairly well settled. However, as far as the present case is concerned the question is whether after the learned MM has by a detailed order dated 8th March, 2006 rejected such a request, and the order has become final, he can at a subsequent stage suo motu refer the cheques in question for the opinion of the CFSL. The learned Counsel for the respondent was unable to point out any provision under the CrPC which permits that. Nor do any of the judgments referred to hereinabove contemplate such a situation. 16.1 The decision in Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) (2007)2SCC258 was referred to at length by learned Counsel for the respondent and Therefore it requires to be discussed in some detail. The facts of the case were that in application filed by the accused for discharge a ground raised was that the cheques ought to have been referred for the opinion of the handwriting expert. The application was dismissed by the Magistrate holding that the genuineness of the signature could be questioned only at the time of trial. During the trial, the appellant preferred an application under Section 243 CrPC seeking referral of the cheques for expert onion. The dismissal of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings. In the circumstances, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable. 16.3 It is clear that in the above case the request for sending the cheques in question to the handwriting expert only made once by the accused and not as in this case on two occasions. Further in Kalyani Baskar, the decision of the learned MM rejecting the request was carried in revision to the High Court and thereafter to the Supreme Court. However, in the present case, the order dated 8th March 2006 was not challenged by the accused further after the dismissal of the revision petition. There is nothing in Kalyani Baskar which indicates that despite a Magistrate by a judicial order having rejected the request for referring the cheques in question to a handwriting expert, it can thereafter suo motu refer those very cheques to a handwriting expert. Indeed, if such a proposition were to be accepted, it would virtually amount to permitting the learned MM to either review his own order or the order of the predecessor. That is clearly impermissible in the scheme of the CrPC. 17. Viewed it from any angle, the order of the learned M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the date. There is no rule in banking business that payee's name as well as the amount should be written by drawer himself. In the instant case Bank has never found that the cheque was tampered with or forged or there is material alteration or that the handwriting by which the payee's name and the amount was written was differed. The Bank was willing to honour the cheques if sufficient funds were there in the account of the drawer even if the payee's name and the amount was written by somebody else other than the holder of the account or the drawer of the cheque. The mere fact that the payee's name and the amount shown are not in the handwriting of the drawer does not invalidate the cheque. No law provides in the case of cheques the entire body has to be written by the drawer only. What is material is the signature of the drawer and not the body of the instrument. Therefore when the drawer has issued the cheque whether the entire body was written by the drawer written beyond the instructions of the drawer, whether the amount is due or not, those and such matters are defenses which drawer has to raise and prove it. Therefore the mere fact that the payee's name ..... X X X X Extracts X X X X X X X X Extracts X X X X
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