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DELHI HIGH COURT
Ved Prakash Vaish, J.
Nisha Gupta —Petitioner
versus
Ram Kishan Gupta —Respondent
Crl. M.C. No. 1234 of 2013
Decided on 30.5.2014
Counsel for the Parties:
For the Petitioner:Mr. Vinay Sabharwal, Advocate.
For the Respondent:Mr. Shrey Chathly, Advocate.
IMPORTANT POINT
Magistrate would be justified in declining to refer cheques for opinion of handwriting expert where signatures on cheque were not disputed by drawer.
Headnote:Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Sections 242 and 243—Dishonour of cheque—Expert opinion—When accused disputes his signature on cheques in question in proceeding under Section 138 of the Act, Court has to afford opportunity to accused to obtain expert’s opinion as to genuineness or otherwise of signatures found therein—However, said ratio will not apply to a case where a cheque admittedly signed by drawer is sought be analyzed by an expert for an opinion as to age of ink used in cheque—If opinion of scientific investigation is going to help in extracting truth and determining controversy raised in dispute before Court then, such an investigation could be permitted—If ink is manufactured five years before date of execution of document, no useful purpose will be served if such a cheque is analyzed by expert for rendering an opinion—Use of old ink manufactured long ago will definitely create a dent in opinion furnished by an expert— There is no necessity for sending cheques in question, admittedly signed by petitioner to expert for his opinion—Petition dismissed. (Paras 14 to 20)
Result: Petition dismissed.
Ved Prakash Vaish, J.— The petitioner, Smt. Nisha Gupta has filed the present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter after referred to as ‘Cr.P.C’) passed by learned JSCC/ASCJ/GJ, New Delhi in Complaint Case No. 134A/09 whereby the applications under Sections 242 and 243 Cr.P.C. filed on behalf of the petitioner were dismissed.
2. In nutshell, the facts of the case are that the respondent herein filed a complaint under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘Act’) against the petitioner on the grounds, inter alia, that the respondent and the petitioner were having family friendship. The petitioner owed a sum of Rs.2,00,000 from the complainant/respondent for business purposes. The petitioner issued cheque No.431946 dated 8.11.2002 and cheque No. 431947 dated 11.11.2002 for Rs.75,000 each, both drawn on Canara Bank, Okhla Industrial Estate, New Delhi towards part payment of discharge of liability. On presentation, the cheques were dishonoured with the remarks ‘Account Closed’. The respondent served notice of demand on the petitioner. Despite service of notice, the petitioner failed to make payment of the amount of cheques in question. Hence the respondent filed a complaint under Section 138 of the Act.
3. Notice under Section 251 Cr.P.C. was given to the petitioner. After recording the evidence of the respondent/complainant, statement of petitioner/accused under Section 313 Cr. P.V. was recorded on 25.7.2009. Thereafter the petitioner moved an application under Section 315 Cr.P.C. seeking permission to appear as a witness. The said application was allowed vide order dated 24.09.2009 by learned trial Court. The petitioner, Smt. Nisha Gupta examined herself as DW1.
4. Subsequently, the petitioner moved an application under Section 243 Cr.P.C. on 27.8.2009 for determining the age of signatures and writing on the cheques. The petitioner moved another application under Section 242 Cr.P.C. on 7.6.2012 seeking permission to recall the respondent/complainant for further cross-examination and for summoning of concerned clerk from the office of Sub- Registrar-V, Mehrauli, New Delhi. Vide impugned order dated 26.2.2013 learned trial Court dismissed both the applications filed on behalf of the petitioner. Feeling aggrieved by the said order, the petitioner has preferred the present petition.
5. Learned counsel for the petitioner contended that in the year 1992-93, the petitioner had purchased a shop at Vasant Plaza Building, Vasant Kunj, New Delhi through M/s. R.K.Builders wherein the complainant and his two brothers namely, Shri Bhagwan Gupta and Ramesh Gupta were partners. He also submitted that in the year 1993, the petitioner issued the cheques in question to the complainant as a security as part consideration towards purchase of the shop. The cheques in question were blank with respect to the name and date and the remaining details were filled by the husband of the petitioner. Subsequently, the petitioner made payment of Rs.1,60,000 in cash to
M/s R.K. Builders but despite the request of petitioner, no receipt was issued. The petitioner demanded the cheques from the complainant and his brothers and they told her that cheques were misplaced. The counsel for the petitioner also submitted that the respondent/complainant had misused the said cheques by filling the date after a long period of about nine years and presented the same.
6. Learned counsel for the petitioner also submitted that it is necessary to determine the age of signature and writing on the cheques and, therefore, the cheques in question be sent to Forensic Science Laboratory.
7. Learned counsel for the petitioner also urged that in the first week of June 2012, during interaction with some of the shop owners, petitioner could lay hands on Memorandum of Family Settlement dated 16.3.2010 which was executed between the legal heirs of one of the partners, Late Mr. Shri Bhagwan Gupta and the rem
