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2019 Supreme(Raj) 1697
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Mr. Pankaj Bhandari, J.
Guganram - Appellant
Versus
State Of Rajasthan - Respondent
Criminal Miscellaneous (Petition) Nos. 1267, 6602, 7641, 7642, 7644 and 7660 of 2018
Decided On : 30-05-2019
Mr. Gunjan Pathak with Ms. Ishita Rawat Mr. Punit Singhvi, Advocates. (in CRL.M.Pet. 1267 of 2018, 7641 of 2018, 7642 of 2018, 7644 of 2018 and 7660 of 2018 in CRL.M. Pet. 6602 of 2017) for the Appellant; Mr. Arvind Kumar, PP. Mr. Gunjan Pathak, Advocate. (in CRLMP No.6602 of 2017) for the Respondent
The court has the inherent power to direct forensic examination of a dishonoured cheque to determine its authenticity, especially when the accused raises a genuine defence of interpolation and the complainant fails to establish his capacity to advance the large sum of money mentioned in the cheque.
Headnote:
NEGOTIABLE INSTRUMENTS ACT, 1881 - SECTION 139 - DISHONOURED CHEQUE - FORENSIC EXAMINATION - BURDEN OF PROOF - INHERENT POWERS OF THE COURT - QUASHING OF F.I.R. - DELAY IN LODGING F.I.R. - MISCARRIAGE OF JUSTICE.
Fact of the Case:
Petitioner Guganram challenged the order rejecting his application to send a dishonoured cheque for forensic examination to determine whether the amount was interpolated. He also sought to quash the F.I.R. against him, alleging that the complainant had added a zero to the cheque amount, changing it from Rs. 69,000 to Rs. 6,90,000. The complainant, Kamleshwar Singh, opposed the petition, arguing that the burden of proof lay with the accused and that there was no justification for sending the cheque for forensic examination since it was dishonoured due to insufficient funds.
Finding of the Court:
The court found that the petitioner had raised a genuine defence that the cheque was interpolated and that sending the cheque for forensic examination would help determine its authenticity. It also noted that the complainant, a government employee, had not provided any evidence to establish his capacity to advance a large sum of money to the petitioner. The court further held that the delay in lodging the F.I.R. did not warrant quashing it, as stalling the police proceedings would result in miscarriage of justice.
Issues: 1. Whether the court erred in rejecting the petitioner's application to send the dishonoured cheque for forensic examination? 2. Whether the F.I.R. against the petitioner should be quashed due to delay in lodging it?
Ratio Decidendi: 1. The court relied on various precedents holding that an accused has the right to a fair trial and to adduce evidence in his defence. It also noted that the genuineness of signatures cannot be decided without seeking an expert opinion. The court further observed that the complainant had not provided any evidence to establish his capacity to advance the large sum of money mentioned in the cheque. 2. The court held that the delay in lodging the F.I.R. did not warrant quashing it, as stalling the police proceedings would result in miscarriage of justice.
Final Decision: 1. The court quashed the orders rejecting the petitioner's application to send the cheque for forensic examination and directed the trial court to do so. 2. The court dismissed the petitioner's petition to quash the F.I.R.
JUDGMENT
Pankaj Bhandari, J. - Petitioner-Guganram has preferred Criminal Miscellaneous Petition No.1267/2018 aggrieved by order dated 31.01.2015, 16.11.2017 & 07.12.2017 passed by Judicial Magistrate, Chirawa and petitioner-Kamleshwar Singh has preferred Criminal Miscellaneous Petition No.6602/2017 for quashing of F.I.R. No.395/2017 filed by petitioner Guganram.
2. It is contended by counsel for the petitioner that the cheque in question was issued for a sum of Rs. 69,000/- (Rupees Sixty Nine Thousand Only). Complainant has added a zero in the figure and has lodged the cheque of Rs. 6,90,000/- (Rupees Six Lac Ninety Thousand Only).
3. It is contended that petitioner is a Government employee working as Clerk in a school. His bank account and income tax return do not depict giving of any advance to the petitioner. It is also contended that petitioner had filed two complaints in his name and complaints have also been filed by his sons against Yusuf Ali, wherein, cheque amount of Rs. 20,000/- (Rupees Twenty Thousand Only) was changed to Rs. 1,20,000/- (Rupees One Lac Twenty Thousand Only) for Cheque No.174463, Rs. 3,20,000/- (Rupees Three Lac Twenty Thousand Only) for Cheque No.174462, Rs. 2,20,000/- (Rupees Two Lac Twenty Thousand Only) for Cheque No.174465 & Rs. 2,20,000/- (Rupees Two Lac Twenty Thousand Only) for Cheque No.174464. Though the said files pertained to different cheque dishonour cases but the same have been got tagged with present case just to depict the conduct of the complainant.
4. It is contended that complainant is a Government employee working as Clerk. As per Government rules, he is not permitted to advance loans without seeking prior sanction of the Government.
5. It is contended that prayer was made for sending the cheque to FSL, the dismissal of the application on the ground that the cheque was dishonoured due to insufficient funds and not due to non-matching of signature is not proper as every person is presumed to be innocent till proven guilty and once the law places burden on the accused, Court must have given him opportunity to discharge the burden.
6. It was also observed in "O.P. Sharma vs. Ashok Bohara" (S.B. Criminal Miscellaneous Petition No.2342/2010) decided by Co-ordinate Bench of this Court on 11.08.2011 that genuineness of signatures cannot be decided without seeking opinion of an expert. Similar view was taken by the Rajasthan High Court in "Hanuman Sahay Sharma vs. Manish Dhamani" 20l2 SCC Online Raj 3612 .
7. Reliance has also placed on "T. Nagappa vs. Y.R. Muralidhar" (2008) 5 SCC 633, wherein Apex Court has held that an accused has a right to fair trial and adduce evidence for that prupose. It further held that request of the accused to send the cheque to the Forensic Examination was bonafide.
8. The Apex Court in "Kalyani Baskar vs. M.S. Sampoornam" (2007) 2 SCC 258, held that prayer of the accused to send the cheque for opinion of handwriting expert to ascertain genuineness of signature should be allowed unless Court is of view that the object of the accused was to delay the criminal proceedings.
9. It is contended that petitioner obtained report from an independent handwriting expert, wherein, handwriting expert has opined that zero was added later on in the cheque.
10. It is contended that petitioner moved an application before the concerned Court to send the cheque to State Forensic Science Laboratory to obtain report from handwriting expert regarding interpolation in the cheque which application was rejected by the Court vide order dated 31.01.2015.
11. It is contended that petitioner moved another application with a prayer that bank account details and income tax return of the complainant be called for, to establish whether he was having the capacity to advance money to the complainant to the tune of Rs. 6,90,000/- (Rupees Six Lac Ninety Thousand Only) in July, 2011. The said application was also rejected by the Court.
12. It is argued that Apex Court in "Basalingappa vs. Mudibasappa" 2019
