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KARNATAKA HIGH COURT
K. Somashekar, J.
Annappa Maruti Magadum – Petitioner
versus
Karnataka Multipurpose Souhard Sahakari Ltd. – Respondent
Criminal Petition No.100852 of 2019
Decided on 17.9.2019
Negotiable Instruments Act, 1881 – Section 138 – Indian Evidence Act, 1872 – Section 45 read with Section 73 – Criminal Procedure Code, 1973 – Sections 293(1), 293(4)(c) and 482 – Dishonour of cheque – Rejection of petition filed by accused for comparison of signature and handwriting by expert – 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, but relevant provision under Section 293(1) and 293(4)(c) of 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 – Based upon relevant provision of Sections 293(1) and 293(4)(c) of Cr.P.C., having an authority to examine disputed cheque relating to age of ink and contents of writing found on cheque in the case can be adjudicated between complainant and accused – – Ultimately Judge will be an expert apart from other experts or an expert of expert or Court is an expert of experts in concluding the matter by taking decision after considering entire facts of case, as keeping in view scope and object of Section 73 of Evidence Act, 1872 – Impugned order passed by Trial Court set aside – Application filed by petitioner–accused under Section 45 read with Section 73 of Evidence Act allowed.
Held: Section 73 of the Indian Evidence Act, 1872, relates to the comparison of signature, writing or seal with others admitted or proved. However, it is the power vested under the Court to consider and decide the matter by sending the disputed cheque for expert opinion or not. It is relevant to refer the judgment of the Patna High Court in the case of Khushboo Sharivastava, D/o. Sri Mohan Prasad Shrivastava vs. The Union of India (UOI) Through the Secretary, Human Resources Department, Govt. of India and others reported in 2009 (1) PLJR 867. Ultimately the Judge will be an expert apart from other experts or an expert of the expert or Court is an expert of experts in concluding the matter by taking the decision after considering the entire facts of the case, as keeping in view the scope and object of Section 73 of the Indian Evidence Act, 1872.
In the instant petition, the petitioner is arraigned as accused in C.C. No.991/2014, wherein he is facing up the trial for the offence punishable under Section 138 of the N.I. Act. In the meanwhile, the petitioner – accused had made an application under Section 45 read with Section 73 of the Act, 1972 seeking to refer the disputed cheque at Ex.P-2 subjected for examination and to give the opinion report regarding the age of ink and also the contents of writing made on the cheque. But the said application was rejected by the Court below in C.C. No.991/2014 and the same has been challenged under this petition. Mere because technically the provision has been quoted by the applicant – accused before the Court below seeking to refer the disputed cheque Ex.P-2, it cannot be a ground to reject the application filed by the petitioner herein, but the relevant provision under Section 293(1) and 293(4)(c) of Cr.P.C. regarding subjecting the disputed cheque for examination or analysis and securing the report under this Court, it may be used as evidence in any enquiry, trial or other proceedings.
Accordingly, subjecting the disputed cheque at Ex.P-2, relating to the age of ink and contents found on the said cheque, is required to be examined and a report to be secured by the Forensic Science Laboratory. 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 contents of writing found on the cheque got marked as Ex.P-2 in the aforesaid case be adjudicated between the complainant and the accused.
For the aforesaid reasons and findings, it is deemed proper to consider the petition filed by the petitioner – accused and intervention of this court into the impugned order is called for. Accordingly, (Paras 16, 17, 18 and 19)
Result: Criminal Petition allowed.
ORDER
K. Somashekar, J.—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
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