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2019 Supreme(Raj) 1889
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Pankaj Bhandari, J.
Guganram - Appellant
Versus
State Of Rajasthan Through Pp - Respondent
Criminal Miscellaneous (Petition) No. 1267 of 2018, 6602 of 2017, 7641 of 2018, 7642 of 2018, 7644 of 2018, 7660 of 2018
Decided On : 30-05-2019
Gunjan Pathak, Advocate, Ishita Rawat, Advocate, Punit Singhvi, Advocate, Arvind Kumar, Advocate
An accused in a Negotiable Instruments Act case has the right to a fair trial and to adduce evidence, including sending the cheque for forensic examination, to support their defense.
Headnote:
NEGOTIABLE INSTRUMENTS ACT - SECTION 139 - SECTION 138 - SECTION 142 - SECTION 148 - SECTION 149 - SECTION 138 - SECTION 142 - SECTION 148 - SECTION 149 - SUMMARY: Court directed the trial court to send the cheque to the State Forensic Science Laboratory to inquire whether the figure zero was subsequently added. The court also directed the complainant to furnish his bank details and income tax returns to establish his capacity to advance the amount mentioned in the cheque.
Fact of the Case:
Petitioner-Guganram challenged the order of the Judicial Magistrate, Chirawa, rejecting his application to send the cheque to the State Forensic Science Laboratory to ascertain whether the figure zero was subsequently added. Petitioner-Kamleshwar Singh sought the quashing of the FIR filed by Guganram, alleging that the cheque amount of Rs.69,000/- was interpolated to Rs.6,90,000/-.
Finding of the Court:
The court found that the complainant's allegation that he advanced Rs.6,90,000/- to the petitioner in cash raised doubt on his case, considering his status as a Government employee of the level of a Clerk. The court also noted that the petitioner had obtained a report from an independent handwriting expert, who opined that the zero was added later on the cheque.
Issues: 1. Whether the trial court erred in rejecting the petitioner's application to send the cheque to the State Forensic Science Laboratory. 2. Whether the FIR should be quashed due to delay in lodging.
Ratio Decidendi: 1. The court held that the petitioner's defense that the cheque was interpolated raised a genuine issue that required further investigation. The court relied on precedents holding that an accused has a right to a fair trial and to adduce evidence for that purpose, including sending the cheque for forensic examination. 2. The court held that the delay in lodging the FIR did not warrant quashing the FIR, as stalling the police proceedings would result in miscarriage of justice.
Final Decision: 1. The court quashed the orders of the trial court rejecting the petitioner's application to send the cheque to the State Forensic Science Laboratory and to summon the bank details and income tax return of the complainant. 2. The court dismissed the petitioner's petition for quashing the FIR.
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, (2013) 2 RajLW 1410 : 2012 SCC Online Raj 3612 : 2013 Cri LJ 370 (2013) 5 RCR (Cri) 662 (2014) 5 RCR (Civil) 315 (2013) 1 WLC 56 .
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 als
