The consistent stand of the accused and the relevance of insufficient funds in dishonoring the cheque were crucial in reaching the decision.

JUDGMENT

Jasjit Singh Bedi, J. (Oral) - The prayer in the present petition under Section 482 Cr.P.C. is for setting aside the order dated 31.10.2019 (Annexure P-10) in COMA-7878/16 under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') and order dated 14.09.2018 (Annexure P-8) in COMA-7878/16 under Section 138 of the N.I. Act passed by the Judicial Magistrate Ist Class, Ludhiana whereby the application for recalling and for permission to the petitioners-accused to examine the hand-writing and finger print expert has been dismissed.

2. The brief facts of the case are that the petitioners-accused are said to have approached the respondent-complainant for advancement of a loan for a sum of Rs.4,00,000/-. In order to repay the same, the petitioner No.1-accused is said to have issued a cheque No.479496 dated 04.07.2016 for an amount of Rs.4,00,000/- drawn on Oriental Bank of Commerce, Dharampura, Ludhiana, with an assurance that on encashment, the cheque would be cleared. However, the said cheque issued by the petitioner No.1-accused to the respondent-complainant was dishonoured with the remarks 'funds insufficient' This lead to sending a legal notice, filing of a complaint under Section 138 of the N.I. Act. and subsequent summoning order.

3. Thereafter, the complainant-respondent (CW-1/Sudhir Kumar) got recorded his cross-examination on 04.08.2017 and the same is on record as Annexure P-5.

4. Pursuant thereto, an application was moved by the petitioners dated 19.02.2018 for allowing her to examine a handwriting expert as it was the case of the petitioner No.1-accused that the said cheque purportedly issued by her contained her forged signatures.

5. The said application made to be declined by the Judicial Magistrate Ist Class, Ludhiana vide order dated 14.09.2018 (Annexure P-8) by recording a finding that the cheque had been dishonoured not on the ground of 'signatures differs' but on the ground of 'funds insufficient'. It was further held that the petitioner No.1-accused had taken contradictory pleas. On the one hand she stated that the cheque did not bear her signatures and on the other hand, she stated that the complainant had misused the cheque. Therefore, the Court came to the conclusion that the application had been filed to delay the proceedings.

6. Subsequent thereto, an application for recalling the aforementioned order dated 14.09.2018 (Annexure P-8) and for permission to the accused-petitioners to examine the handwriting/finger expert was moved once again. It was stated that the cheque, in question, was not signed by the petitioner No.l-accused as was borne out from the notice of accusation and statement under Section 313 Cr.P.C.. It was also submitted that DW-1 had deposed that the cheque, in question, was not signed by accused-petitioner No.1 and DW-2 had clarified that as per the clearance norms if there was no balance in the account then the 'signatures difference' was not to be seen by the bank for the purpose of clearance of the cheque. Meaning thereby that if the funds were insufficient then that ground itself was sufficient to dishonour the cheque and the examination of the signatures was not be done by the bank employee. The said application for recalling and consequential permission to examine the handwriting and finger-print expert was dismissed on the ground that the Court could not review its order. A copy of the order dated 31.10.2019 is attached to the petition as Annexure P-10.

It is these two orders which are impugned in the present petitioner.

7. The learned counsel for the petitioner contends that it is the consistent stand of the petitioner No.1-accused in the notice of accusation as also in the statement under Section 313 Cr.P.C. that the cheque, in question did not bear her signatures.

He contends that the petitioner No.1-accused had examined one Anil Kumar, her son as DW-1 who had stated that the cheque, in question, did not bear her (petitioner No.1-accused) signatures. DW-2/Pr