The main legal point established in the judgment is the relevance of sending a cheque to the Forensic Lab to ascertain the age of ink in the context of the defense raised by the petitioner.

Judgment

Mr. Harkesh Manuja, J.

By way of present petition filed under Section 482 Cr.P.C., prayer has been made for quashing of the impugned order dated 14.11.2023 passed by the Court of Ld. S.D.J.M, Safidon, whereby an application filed at the instance of the petitioner for sending the cheque in question to Forensic Lab CBI, Delhi, so as to ascertain the age of Ink of particular given on cheque has been dismissed.

2. In the present case, on account of dishounour of cheque dated 15.07.2018, the respondent filed a complaint against the petitioner invoking the provision under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred as NI Act). In the aforesaid complaint, the petitioner was served notice of the accusation on 20.11.2018 and the matter was posted for complainant’s evidence on 18.04.2019 which culminated on 21.09.2023. Thereafter, the proceedings were fixed for recording the evidence of the petitioner-accused. On the second date, the petitioner moved an application for issuance of direction to send the cheque in question to Forensic Lab CBI, Delhi, so as to ascertain the age of the Ink used thereupon as the advance facilities were available there only.

3. The aforesaid application was contested and opposed at the instance of respondent complainant by filing its reply thereto. The trial Court vide order dated 14.11.2023 dismissed the application filed at the instance of the petitioner primarily for the reason that the petitioner who was to adduce cogent evidence in his favour was using dilly-dally tactics having moved the aforesaid application only to delay the proceeding in the present case. Present petition has been filed impugning the order dated 14.11.2023.

4. Learned counsel for the petitioner submits that the defence which is being sought to be agitated by the petitioner is that the parties were in fiduciary relationship of an agriculturist and lender commission agent and the bank account of which the cheque in question is being misused was got opened by the petitioner with the assistance of respondent and during that time the cheque in question was retained by the respondent on 12.11.2010. As per learned counsel for the petitioner, the cheque in question was later misused by the respondent and thus in order to establish his defence, the sending of same to the Forensic Lab, so as to ascertain the age of Ink thereupon was essential.

5. On the other hand prayer made has been vehemently opposed at the instance of learned counsel for the representing respondent while relying upon the judgment of Supreme Court in case of “Oriental Bank of Commerce Vs. Prabodh Kumar Tewari passed on 16.08.2022 in Criminal Appeal No 1260 of 2022 (arising out of SLP (Crl) No 9836 of 2019)”. It is contended that once the signatures were admitted by the petitioner-accused, there was no purpose of sending the cheque to the handwriting expert as the same would not make any difference even if the details therein were filled up by some other person as compared to the person having signed the same as the drawer. The relevant paragraphs No. 17 to 19 as referred by the learned counsel for the respondent are reproduced as under:-

“17. For such a determination, the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand-writing expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability.

18. Undoubtedly, it would be open to the respondents to raise all other defenses which they may legitimately be entitled to otherwise raise in support of their plea that the cheque was not issued in pursuance of a pre-existing debt or outstanding liability.

19. In the circumstances, the appeal is allowed and the impugned order of