2005 Supreme(Raj) 3118
RAJASTHAN HIGH COURT AT JAIPUR BENCH
K.C.Sharma, J.
Om Dutt Vyas - Appellant
Versus
State of Rajasthan - Respondent
S.B. Criminal Misc. Petition No. 86 of 2005.
Decided On : 20-07-2005
Advocates:
For the Petitioner:Pankaj Gupta, Advocate.
For the Party: R.P Kuldeep, Public Prosecutor.
For the Non-Petitioner:A.K. Gupta, Advocate.
Headnote:Criminal Procedure Code – S. 482 – Evidence Act, 1872 – S. 45, 47, 67 N.I. Act – S. 138 – petition against the rejection of the application of petitioner for getting handwriting expert`s opinion on cheque – offence of dishonour of cheque – Petition against – Cutting in date and signature against it – allegedly fabricated – Cheque was claimed to be old and date had also expired – during cross examination also the same question was highlighted – held, in an argument concerning the cutting and signature, opinion of expert is essential for just decision of the case – Impugned order set aside and the lower court directed to decide the application afresh on merits at this stage – Petition was accepted.
JUDGMENT
1. - Heard counsel for the parties.
2. The petitioner is facing trial for offence under Section 138 of the Negotiable Instruments Act. In the course of trial, the petitioner moved an application under Sections 45, 47 and 67 of the Evidence for getting the report of Hand Writing Expert regarding the signatures of the petitioner on the cheque in question. The learned trial court vide its order dated 12.7.2004 dismissed the petitioner's application on the ground that after the evidence of both the parties is recorded and on the basis of evidence of the parties if the court feels it necessary then appropriate action would be taken on the application of the petitioner. The petitioner then challenged the order of the trial court in revision petition. The learned revisional court vide its order dated 27.10.2004 affirmed the order of the trial court and dismissed the revision petition. Hence the present petition.
3. According to the petitioner there was cutting on date mentioned on the cheque in question and against cutting there was signature. The cutting and signature both were not made by the petitioner. He stated that both were fabricated. The petitioner further stated that the cheque in question was old one and its validity had expired long back. The suggestion to this effect was also put in the course of cross examination of the complainant in these circumstances, since the controversy centres round the cutting and signature, the opinion of the Hand Writing Expert was essential for the just decision of the case, in my firm view, the courts below should have considered the application of the petitioner at this stage, Inasmuch as the petitioner has denied the cutting and signature having been made by him. If the opinion of the expert comes in favour of the petitioner, he would certainly examine the expert in defence. In this view of the matter, if the impugned orders are allowed to stand, they would result in injustice to the petitioner and, therefore, I consider it to be a fit case for exercising inherent power.
4. In the result, this petition succeeds and is hereby allowed. The impugned orders are set aside and the trial court is directed to decide the petitioner's application on merits, at this stage.Petition allowed.
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