IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .

Cr.MMO No. 806 of 2023 Reserved on: 01.11.2023.

Date of Decision: 05.12.2023.

Saroj Kumari ...Petitioner Versus Harminder r ...Respondent Coram Hon’ble Mr. Justice Rakesh Kainthla, Judge.

Whether approved for reporting?¹ Yes.

For the P etitioner : Mr. R.L. Thakur, Advocate.

For the Respondent : Mr. Vikram Thakur, Advocate.

iRakesh Kainthla, Judge The present petition is directed against the order passed by the learned Chief Judicial Magistrate, Shimla, dated 24.1.2023, vide which the application filed by the petitioner under Section 45 read with Section 73 of the Indian Evidence Act for seeking the expert opinion of Handwriting Expert by comparing the signatures of the applicant with the disputed signatures was dismissed.

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

2. It has been asserted that the respondent filed a complaint under Section 138 of the Negotiable Instruments Act against the petitioner in the year 2016. The petitioner/accused disputed her signatures on the cheque in the cross-examination of the respondent/complainant. The petitioner had lost the chequebook in May, 2017. She informed the Bank on 16.5.2017. The petitioner filed an application under Section 45 read with Section 73 of the Induian Evidence for comparing the signatures on the cheque woith the signatures on Power of Attorney and the specimen Csignatures. The application was dismissed by the Court on 24.1.2023 on the ground that the cheque was not dishonoured on the ground that the drawer's signatures differ. It is asserted that the learned Court below misconstrued the Hprovision of law. There was no evidence that the petitioner had signed the cheque. The application could not have been dismissed on the ground that the cheque was not dishonoured on the ground that the drawer’s signature differs. The opinion of the expert was necessary to establish the defence. Therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.

3. I have heard Mr. R.L. Thakur, learned Counsel for the petitioner/accused and Mr. Vikram Thakur, learned counsel for the respondent/complainant.

4. Mr. R.L. Thakur, learned Counsel for the petitioner/accused submitted that the learned Trial Court erred in dismissing the application on the ground that the cheque was not dishonoured on the ground that the drawer’s signatures differ. The petitioner has disputed her signatures on the cheque from the beginning. She had cross-examined the respondent/complainant regarding this fact. She had also made a compl aint to the bank regarding the loss of the chequebook. Learned Trial Court erred in dismissing the application on the ground that the cheque was not dishonoured due to a difference in signatures. The petitioner could not have been held liable when she had not signed the cheque. The petitioner is entitled to take recourse to expert evidence to establish her innocence and learned Trial Court erred in dismissing the application. Therefore, learned counsel for the petitioner prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.

5. Mr. Vikram Thakur, learned counsel for the respondent/complainant supported the order passed by the learned Trial Court and submitted that no interference is required with the same.

6. I have given considerable thought to the rival submissions at the bar and have gone through the record carefully.

7. The Learned Trial Court dismissed the application solely on the ground that the cheque was not dishonoured on the ground drawer’s signature differs. Learned Trial Court failed to appreciate that if the cheque was dishonoured on the ground that the drawer’s signature differs, the complaint would not have been filed under Section 138 of the NI Act and there was no need for the complainant to file an application under Section 45 read with Section 73 of the Indian Evidence Act for comparison of s