Point of Law: Negotiable instruments – Expert opinion for signature - whether the signature appearing on Ex.D.1 is that of the complainant or not. Under such circumstances, it is essential that the best and the complete evidence on the aspect as to whether the signature on Ex.D.1 is really that of the complainant or not is obtained by the trial Court.

ORDER :

1. This is a petition filed under Section 482 C r.P.C., calling in question the legality and validity of the order passed on 28.11.2017 rejecting IA No.1 filed under Section 45 of Evidence Act in C.C.No.6 of 2016 by the learned Civil Judge and JMFC, Mudalagi.

2. Brief facts are that, the present petitioner is the complainant in proceedings initiated under Section 138 of Negotiable Instruments Act, 1881 (for short, herein after referred` to as N.I. Act) before the learned Civil Judge and JMFC, Mudalagi, which is currently pending in C.C.No.6/2016. The respondent herein is the accused in the said case. The case of the complainant is that, some time prior to 2010, through a series of loan advances made, he had in all given a sum of Rs.2,80,000/-to the respondent and towards repayment of the same, the accused had issued a cheque for Rs.2,80,000/-dated 23.01.2010, which upon presentation before the banker was returned dishonoured. A notice was duly issued by the petitioner herein and respondent issued a reply notice as per Ex.P.8, essentially contending that he had indeed taken loan of Rs.40,000/-in the year 2009 from the complainant and not Rs.2,80,000/-as demanded and he had returned the same after about six months and the petitioner had passed a valid receipt in that behalf which is marked as Ex.D.1 before the learned Court below.

3. It is contended before me by the learned counsel for the petitioner that his application I.A.1 filed under Section 45 of the Evidence Act has been rejected by the learned trial Court on impermissible grounds and therefore, it is liable to be set aside. In this behalf, he submits that the petitioner has denied the signature appearing on Ex.D.1 and, therefore the Court should have allowed the application and referred Ex.D.1 for the examination of an expert to ascertain the genuineness and authenticity of the signature borne on Ex.D1. He submits that this petition is entitled to be allowed and order of the learned Court below on I.A.1 is liable to be set aside and Ex.D.1 referred to an expert for examination of the disputed signature. In this behalf, learned counsel for the petitioner places reliance on the following decisions of the Hon’ble Supreme Court of India :

1. (2007) 2 SCC 258 – Kalyani Baskar (Mrs.) Vs. M.S. Sampoornam (Mrs.).

2. AIR 2012 SCW 5492 – Ajay Kumar Parmar Vs. State of Rajasthan.

3. (2008) 5 SCC 633 – T.Nagappa Vs. Y.R. Muralidhar.

4. Learned counsel appearing for the respondent – accused, per contra, submits that not only has the accused – respondent examined himself as D.W.1, he has also examined attestor to Ex.D.1 as D.W.2. Besides, according to the learned counsel for the respondent, the learned Court below has the power and discretion under Section 73 of the Evidence Act to examine the disputed signature by taking some sample signatures of the complainant – petitioner herein in the Court itself and to compare and ascertain whether the disputed signature on Ex.D.1 is that of the complainant himself. It is therefore his submission that the learned Court below was right and justified in rejecting application – I.A.No.1 and therefore, there is no good ground made out to interfere with the same. In this behalf, he places reliance on a decision reported in 1996 CrLJ 3099 (Satish Jayanthilal Shah vs, Pankajj Mashruwala).

5. I have perused the records produced before me by the learned counsel on both sides and also the oral submissions made before me. I have perused the various decisions relied upon by the learned counsel on both sides.

6. There cannot be any dispute about the fact that the accused – respondent herein has not, in essence, denied the loan transaction between the parties. The only point of dispute is as to whether the loan transaction was to the tune of Rs.2,80,000/-or to the tune of Rs.40,000/-.The further dispute is as to whether, if the loan transaction was in the tune of Rs.40,000/-it was repaid by the accused in terms of Ex.D.1, as contended by him before the learn