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2019 Supreme(Kar) 1925
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
K. Somashekar, J.
Annappa Maruti Magadum - Petitioner
Versus
Karnataka Multipurpose Souhard Sahakari Ltd And Ors. – Respondents
Criminal Petition No.100852 of 2019
Decided On : 17-09-2019
Advocate Appeared:
For the Petitioner: Sri. Sharad V. Magadum, Adv.
For the Respondent: Sri. Chetan Munnoli, Adv.
Headnote:
Negotiable Instruments Act, 1881 - Section 138 - Indian Evidence Act, 1872 - Section 73 – Criminal Procedure Code - Section 482 - Penal interest and promised to repay loan – Dishonor of cheque - Whether such scientific investigation is going to advance cause of justice and would be necessary for adjudicating upon rights of parties - Whether a signature writing or seal is that of person by who it purports to have been written or made any signature writing or seal admitted or proved to satisfaction of Court to have been written or made by that person may be compared with one which is to be proved although that signature writing or seal has not been produced or proved for any other purpose - Petitioner – Accused is member of complainant Karnataka Multipurpose and he had availed MTL loan of by executing necessary documents and agreed to pay interest at the rate of annum and in default he had agreed to as penal interest and promised to repay loan amount in monthly installments of regularly - It is further alleged that on several times complainant requested accused to repay loan amount and he had prolonged matter by saying one or other reason and it is alleged that accused issued a cheque bearing for an amount of SBI, ADB Branch repayment of loan amount and interest - It is alleged that complainant presented cheque for encashment but said cheque is returned with an endorsement as funds insufficient - Therefore respondent herein filed a complaint under Section 200 of Cr.P.C. against petitioner – Accused for offence punishable under section 138 of Negotiable Instruments Act 1881 – Held, Section 73 of Indian Evidence Act, 1872 relates to comparison of signature writing or seal with others admitted or proved - However it is power vested under Court to consider and decide matter by sending disputed cheque for expert opinion or not - It is relevant to refer judgment of Patna High Court in case of - Union of India Through Secretary Human Resources Department Govt - Of India and others reported in 2009 - Ultimately Judge will be an expert apart from other experts or an expert of expert or Court is an expert of experts in concluding matter by taking decision after considering entire facts of case as keeping in view scope and object of Section 73 of Indian Evidence Act, 1872 - In instant petition petitioner is arraigned as accused in wherein he is facing up trial for offence punishable under Section 138 of - Meanwhile petitioner – Accused had made an application under Section 45 read with Section 73 of Act, 1972 seeking to refer disputed cheque at subjected for examination and to give opinion report regarding age of ink and also contents of writing made on cheque - But said application was rejected by Court below in and same has been challenged under this petition - Mere because technically provision has been quoted by applicant – Accused before Court below seeking to refer disputed cheque it cannot be a ground to reject application filed by petitioner herein but relevant provision under Section 293 293 Cr.P.C. regarding subjecting disputed cheque for examination or analysis and securing report under this Court it may be used as evidence in any enquiry trial or other proceedings - Accordingly subjecting disputed cheque at relating to age of ink and contents found on said cheque is required to be examined and a report to be secured by Forensic Science Laboratory - Therefore it is said that petition requires to be considered keeping in view aforesaid relevant provision of Section 293 of Cr.P.C - Based upon relevant provision of Sections 293(1) and 293 Cr.P.C. having an authority to examine disputed cheque relating to age of ink and contents of writing found on cheque got marked as in aforesaid case be adjudicated between complainant and accused - Criminal Petition allowed
ORDER :
This petition is filed by the petitioner under Section 482 of Cr.P.C., challenging the order passed by the Court of the Principal Civil Judge and J.M.F.C., Chikkodi in *C.C. No.991/2014* dated 11.03.2019, whereby the trial Court had rejected the application filed by the petitioner – accused under Section 45 read with Section 73 of the Indian Evidence Act, 1872.
2. Heard the learned counsel for the petitioner and the learned counsel for the respondent.
3. The factual matrix of the case are as under:
The petitioner – accused is the member of complainant Karnataka Multipurpose Sahakari Ltd., Chikkodi and he had availed MTL loan of Rs.8,00,000/- on 09.03.2012 by executing necessary documents and agreed to pay interest at the rate of 15% per annum and in default, he had agreed to pay 3% as penal interest and promised to repay the loan amount in monthly installments of Rs.13,335/-regularly. It is further alleged that on several times, the complainant requested the accused to repay the loan amount and he had prolonged the matter by saying one or the other reason and it is alleged that on 23.07.2014, the accused issued a cheque bearing No.062807 dated 23.07.2014 for an amount of Rs.6,78,444/-drawn on SBI, ADB Branch, Chikkodi towards repayment of loan amount and interest. It is alleged that on 23.07.2014, the complainant presented the cheque for encashment, but the said cheque is returned with an endorsement as “funds insufficient”. Therefore, the respondent herein filed a complaint under Section 200 of Cr.P.C. against the petitioner – accused for the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I. Act” for short). Thereafter, the petitioner – accused appeared and filed his objections and thereafter filed an application under Section 45 read with Section 73 of the Indian Evidence Act. However, the Trial Court dismissed the application filed by the petitioner on the ground that the petitioner has accepted the signature on the cheque, though the petitioner has sought for very signature on the cheque and writing on the cheque and hence, sought for referring the matter for expert for comparison of signature and handwriting. After passing of the impugned order, the Trial Court recorded the statement of the accused under Section 313 of Cr.P.C. on 10.04.2019 and posted the matter for arguments. Hence, being aggrieved by the impugned order, the petitioner – accused has filed this petition under Section 482 of Cr.P.C., seeking to set aside the order passed by the Trial Court.
4. Learned counsel for the petitioner submitted that the Trial Court has erred in dismissing the application filed by the petitioner without considering the evidence on record. He further submitted that though the Trial Court has recorded the statement of petitioner under Section 313 of Cr.P.C., wherein the petitioner has stated that he has got defense evidence but the Trial Court has not given any opportunity to the petitioner to lead defense evidence. Learned counsel for the petitioner has further submitted that the Trial Court ought to have considered the fact that the cheque is misused as the petitioner has not filled up the cheque, but it is the complainant who has misused the cheque and hence, sending the cheque for handwriting expert is a must to know the age of the ink of the hand writing on the cheque so also the signature on the cheque, as the same has been denied by the petitioner as the handwriting on the cheque is not belonging to the petitioner.
5. It is further submitted by the learned counsel for the petitioner that the Trial Court has not considered the fact that the petitioner has stated that he has defense evidence after 313 statement and he has not been given opportunity and the matter was posted for arguments and hence, he prayed to allow the application, as the complainant has stated that the petitioner has given the cheque by filling it, as the same was denied by the petitioner and acc
