2019 Supreme(Kar) 2037

IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
K. SOMASHEKAR, J.
Mr. Gavisiddeshwara Hiremath – Appellant
Versus
Mr. Sanjeev Basavarajappa Karadakal – Respondent
Criminal Petition No. 100407 of 2019
Decided On : 25-09-2019

Headnote:

Indian Evidence Act, 1872 - Sections 45 and 73 – Negotiable Instrument Act - Section 138 – Criminal Procedure Code - Section 482 – Dishonor of cheque – Acquittal of order - whether case has been proved by the complainant in order to prosecute the case against the accused for the offence punishable under Section 138 of N.I. Act - whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose- Factual matrix of the case are that the petitioner said to be an accused in C.C.No.709/2014, whereby he is facing up of trial for the offence punishable under Section 138 of N.I. Act, alleging that he had issued a cheque at Ex.P1 in a sum of Rs.8,00,000/- in order to repay the loan amount. The cheque has been presented by the respondent-complainant for encashment, but the said cheque was dishonoured with an endorsement "insufficient funds in the account of the account holder". Subsequently the respondent-complainant initiated the proceedings against the accused for the offence punishable under Section 138 of N.I. Act. Subsequent to initiation of the proceedings in C.C.No.709/2014, the complainant has examined himself as PW1 and was also marked several documents in order to prove the guilt of the accused for the aforesaid offence – Held, Accused alleged to issue cheque at Ex.P1 and the when the said cheque presented by the complainant for encashment in the Bank, the same was returned with an endorsement issued by the Bank as 'funds insufficient in the account of the account holder'. Subsequently, the pre-cognizance arise to the complainant to apply the stipulated condition as under Section 138 of the N.I. Act and initiated the proceedings against the accused in C.C.No.709/2014. The accused who has putting appearance in that case and subsequent to the evidence let-in by the complainant and also got marked certain documents in order to prove the guilt of the accused and even subsequent to recording the 313 statement of the accused and thereafter the case has been set down for the defence evidence. During defence evidence, the accused who has filed an application under Section 45 and 73 of the Indian Evidence Act for seeking to refer the disputed cheque to ascertain the age of the ink and contents found on Ex.P1 from the chemical examiner or otherwise to say the handwriting experts. But the application filed by the applicant-accused came to be dismissed by the Court below. The said impugned order has been challenged under this petition by urging the various grounds - In the instant petition, the petitioner is arraigned as accused in C.C. No.709/2014, wherein he is facing up the trial for the offence punishable under Section 138 of the N.I. Act. However, the respondent-complainant having a responsibility to prove the guilt of the accused by producing the cogent and corroborative evidence in order to secure the conviction whatever the offence has been faced by the accused and also put on trial. But Sections 45 and 73 of the Act, 1872, it is referred relating to the opinion report secured by the competent person otherwise to see an expert relating to the disputed cheque at Ex.P-1 subjected for examination and to give the opinion report regarding the age of ink. But the said application came to be rejected by the Court below in C.C. No.709/2014 and the same has been challenged under this petition by urging the various grounds. The same has been referred supra. Mere because technically the provision has been quoted by the applicant - Therefore, it is said that the petition requires to be considered keeping in view the aforesaid relevant provision of Section 293 of Cr.P.C. Based upon the relevant provision of Sections 293(1) and 293(4)(c) of Cr.P.C, having an authority to examine the disputed cheque relating to the age of ink and also signature, contents of writing found on the cheque, which got marked as Ex.P1 in the aforesaid case be adjudicated between the complainant and the accused - Trial Court has been appreciated the evidence on record keeping in view Section 3 of the Indian Evidence Act of 1872, if the accused has been convicted for the offence punishable under Section 138 of the N.I. Act then only it shall be termed in a criminal in nature. In this case, the accused is required to facing up of trial for the offence under Section 138 of the N.I. Act. Therefore, it is required to consider the application filed by him under Sections 45 and 73 of the Indian Evidence Act - Criminal Petition allowed