TMI Blog2009 (11) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Revision Court, without noticing the case of the revision petitioner. Since the Courts below have failed to consider the case of the accused to the aforesaid effect, they have acted with material irregularity, which has resulted in illegal orders being passed, requiring interference. No doubt, the suggestion has been denied by P.W.2. P.W.3 is an attestor to Ex.P-7, the promissory note. P.W.3 has admitted that, there is difference in the ink with reference to the contents of the document and the name appearing as 'Hadimani' and that they are in different pen. Keeping in view the line of cross-examination of PW's by an interim order, the petitioner was directed to deposit Rs. 3,50,000/-. The petitioner has deposited a said sum in this Court. The Registry is hereby directed to invest the said amount in any Nationalised Bank, for a period of six months. In case the respondent succeeds, the invested amount along with accrued interest shall be paid to the complainant. If the complaint were to be dismissed, the invested amount along with interest earned thereon, be refunded to accused. Keeping in view the prima facie facts and record, it has to be held that, bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not owe to the complainant. Objections were filed by the complainant to the application of the accused, wherein it was contended that the accused in order to return the hand loan has issued the cheque for Rs. 7,20,000/- in favour of the complainant and that the accused has also executed a promissory note and it is in order to discharge the hand loan, the cheque was issued, which was returned with an endorsement of the Bank Insufficient funds . In the circumstances, it is not necessary to send the cheque and the bond paper for the opinion of the hand-writing expert. Learned Magistrate, for the reasons recorded by him, did not find merit in the application and dismissed the same. While dismissing the application it was observed that, the accused has admitted the signature on the cheque and hence naturally the burden is shifted on the accused to disprove the version of the complainant and by merely sending the cheque or the document to the hand writing expert, no purpose will be served. After making a reference to the decisions of this Court and that of the Madras and Kerala High Courts, it was held that, it is not necessary to send for examination the cheque by a hand writing ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the amount and the cheque issued towards discharge of debt being thus not in dispute, no case is made out for grant of relief, in view of which the application was dismissed, which was affirmed by the Revision Court and hence no case exits for interference Under Section 482 of Cr.P.C. Reliance was placed on a decision of this Court, in the case of H.M. Satish v. B.M. Ashok 2007(2) LJ 479. 6. In view of the rival contentions, the point for consideration is; Whether the Courts below have acted legally in declining to refer the cheque to an expert for examination? 7. In T. Nagappa v. Y.R. Muralidhar MANU/SC/7523/2008 : AIR 2008 SC 2010, the facts of the case which came up for consideration were that, T. Nagappa, the appellant, was facing a criminal charge for an offence punishable Under Section 138 of the Act on the allegation that he had issued a cheque in favour of the respondent which on depositing was returned unpaid upon which the complaint was filed and during the pendency of the complaint, the accused filed an application Under Section 243 Cr.P.C. for referring the cheque in question for examination of the Director, Forensic Laboratory for determining the age ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed, the accused appeared before the Magistrate and filed an application Under Section 245 Cr.P.C. raising inter alia preliminary objections that the accused had not signed the cheque nor issued it to the complainant and the cheque in question was drawn from the individual account of the accused and thereafter as alleged by the complainant, the appellant and her husband could not have jointly signed and issued her the cheque and the signature on the cheque may be sent for an expert opinion to ascertain the bonafides of the same and even otherwise neither the drawer of the cheque nor her husband owe any debt to the complainant. The Magistrate dismissed the application on the ground that the genuineness of the signature could be questioned only at the time of the trial of the complainant. During the trial, the accused preferred an application Under Section 243 Cr.P.C. praying the Magistrate to send the cheque in question for expert opinion to ascertain the correctness and genuineness of the accused signature appearing thereon. The Magistrate dismissed the said application on the ground that it was not mandatory that every disputed document or signature must be sent to an expert op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable. The facts in the present case are not materially different from those which were considered by the Apex Court in the decision supra. The ratio of law squarely applies to the present case. 9. In the case of H.M. Satish (supra), the case of the complainant was that, the accused had approached him and borrowed certain sum, issued a cheque which when presented was dishonoured and returned with an endorsement Funds Insufficient and thereafter a notice was issued to which a reply was sent stating that two cheque leaves had been lost and the complainant has mis-used the same. A complaint having been filed, the complainant has got himself examined as P.W.1 and the documents were marked. After examination of the accused Under Section 313 Cr.P.C, the accused filed an application Under Section 45 of the Evidence Act for referring the cheque in question for opinion of a hand writing expert. Noticing the answer given to question No. 5 of the statement recorded Under Section 313 Cr.P.C. stating that he and complainant were partners in timber business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused had approached the complainant with a request to grant financial aid by way of hand loan amount of Rs. 7,20,000/-. Since it could not be arranged by the complainant in lumpsum, the complainant paid the accused an amount of Rs. 4,00,000/- on 29/04/2006 and after 15 days i.e., 15/05/2006, complainant paid Rs. 3,20,000/- to the accused as hand loan. According to him, the promissory note was executed in favour of the complainant on 15/05/2006 and during the last week of March 2008, he heard from the complainant that the accused issued cheque for discharge of the hand loan amount of Rs. 7,20,000/- and the same has been dishonoured in respect of which he has filed the case. P.W.2 during cross-examination, has admitted that, he is not personally aware of the accused having issued the cheque to the complainant and that he is also not aware of the cheque and the bond having been received as a security. However, it was suggested to P. W.2 that the accused is due to the complainant only Rs. 3,50,000/-towards which, the cheque was issued, which the complainant has made use of by writing on the cheque Rs. 7,20,000/- and has filed the false case. No doubt, the suggestion has been denied ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
