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2018 Supreme(Raj) 1594
IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)
Kanwaljit Singh Ahluwalia, J.
Manish Singh - Appellant
Versus
Jeetendra Meena and Anothers - Respondent
S.B. Criminal Misc. Petition No. 3093 of 2018
Decided On : 09-7-2018
For the Appellant : Shashank Agarwal
For the Respondent: Prakash Thakuriya, P.P.
Headnote:
Negotiable Instruments Act – Criminal Procedure – Section 313, 482 – Complainant filed complaint alleging that complainant had given loan to petitioner It further alleged that in lieu thereof, petitioner issued cheque and said cheque on presentation bounced petitioner accused in statement recorded took definite stand that he taken loan of only Rs. 30,000/- from complainant and he paid same in cash –Held, If old ink is used by person, who assisted drawer who already put his signature in cheque to fill up matter, no useful purpose will be sewed if such cheque is analyzed by expert for rendering opinion High Court held that it is not legally required that cheque should be filled by person who has signed same court considered scope of Section 20 held that law nowhere prescribes that in case of Negotiable Instruments, entire body of instrument shall be written only by maker or drawer of instrument. Court held that once execution is admitted, it shall be assumed that cheque issued by accused in favor of complainant towards discharge of liability, even in case where cheque filled by some other person, petitioner qua sending cheque for determination of age cannot be accepted as there is no scientific accurate test available for determination of age of ink. Furthermore, as held by Madras High Court possibility that old ink used by person for filling cheque cannot be ruled out – Appeal allowed. (Para 11, 12)
Facts of the case:
Complainant filed complaint alleging that complainant had given loan to petitioner It further alleged that in lieu thereof, petitioner issued cheque and said cheque on presentation bounced petitioner accused in statement recorded took definite stand that he taken loan of only Rs. 30,000/- from complainant and he paid same in cash.
Findings of the court:
High Court held that it is not legally required that cheque should be filled by person who has signed same court considered scope of Section 20 held that law nowhere prescribes that in case of Negotiable Instruments, entire body of instrument shall be written only by maker or drawer of instrument. Court held that once execution is admitted, it shall be assumed that cheque issued by accused in favor of complainant towards discharge of liability, even in case where cheque filled by some other person, petitioner qua sending cheque for determination of age cannot be accepted as there is no scientific accurate test available for determination of age of ink. Furthermore, as held by Madras High Court possibility that old ink used by person for filling cheque cannot be ruled out.
JUDGMENT :
Kanwaljit Singh Ahluwalia, J.
The present petition has been filed under Section 482 Cr.P.C. praying that the order dated 9.5.2018 passed by the learned Special Metropolitan Magistrate (NI Act Cases) No. 5, Jaipur Metropolitan, Jaipur whereby prayer of the petitioner to send the cheque in question to Forensic Science Laboratory (hereinafter called as ‘FSL’) for analysis, especially for determination of age of ink was dismissed, be set aside.
2. Briefly stated, the complainant/respondent had filed a complaint under Section 138 of Negotiable Instruments Act, alleging that the complainant had given a loan of Rs. 2,60,000/- in September, 2012 to the petitioner. It was further alleged that in lieu thereof, petitioner had issued a cheque and the said cheque on presentation had bounced. The petitioner accused in statement recorded under Section 313 Cr.P.C. took a definite stand that he had taken loan of only Rs. 30,000/- from the complainant and he had paid the same in cash.
3. In the present case, it is contended that the complainant/respondent has alleged that the loan was given to the accused in September, 2012 and the cheque was also handed over to him on the said date.
4. During the course of arguments, the learned counsel for the petitioner has submitted that blank cheque was filled later by the complainant and in fact, the cheque was handed over on 11.6.2012.
5. On the basis of above stand taken, an application was filed before the trial court that the cheque be sent to FSL for determination of the age of ink and handwriting on the cheque.
6. The controversy reused in the present petition is not new to the courts.
7. Single Judge of Punjab & Haryana High Court in Sudarshan Kumar v. Manish Manchanda, reported in 2015 (4) RCR (Cr.) 68, after taking entire case law into consideration held as under:-
“3. Learned counsel for the petitioner contended that the cheques in question have been fabricated. These blank cheques were issued in the year 2008 for the purpose of security for the loan advanced to Harjinder Kumar, the brother of the petitioner. These cheques were later on manipulated in the year 2011 by filling in the body of the cheque. He contended that the determination of the age of the writing/ink used to fill the body of the cheque is essential for the just decision of the case and the application of the petitioner has been wrongly dismissed by the learned Magistrate. To support his contentions, he relied upon case T. Nagappa v. Y.R. Muralidh, 2008 (3) RCR (Criminal) 926 (SC).
4. I have duly considered the aforesaid contentions.
5. As per the contentions raised by learned counsel for the petitioner it is alleged that the cheques in question have been manipulated later on by filling in the necessary particulars in the body of the cheques. 1 has pleaded that the cheques in question should be sent to the Forensic Science Laboratory to determine the age of the ink used fill in the necessary particulars in the body of the cheques. But in my opinion, it is not possible for a document expert to give any definite opinion about the age of the ink as it is not known in which year the ink used to write the document was manufactured. The Constitution. Bench of Hon'ble Supreme Court in case Union of India v. Jyo Prakash Mitter, (1971) 1 SCC 396 : AIR 1971 SC 1093, elaborately dealt with this issue an laid down as under
“10. After consultations between the Ministry of Home Affairs an the Ministry of Law, the Home Ministry sent certain old writings of the year 1904, 1949, 1950 and 1959, and requested the Director to determine the age of the writing of the disputed horoscope and margined note in the almanac by comparison. The Director of April 17, 1965 wrote that it “was impossible to give any definite opinion by such comparisons particularly when the comparison writings were not made with the same ink on similar paper and not stored under the same conditions as the documents under examination”, and that it “will not be possible for a docume
