Crl.P.No.100693/2020

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IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 10^TH DAY OF SEPTEMBER, 2020

BEFORE

THE HON9BLE MR.JUSTICE SURAJ GOVINDARAJ

Crl.P.No.100693/2020

Between:

Mr.Nagaraj Shrishail Gomadi,

Age 33 years, Occ: Service,

R/o. Kattad Oni, Mrutunjay Nagar,

Dharwad.

& Petitioner

(By Shri Neelendra D.Gunde, Advocate)

And:

Mr. Pundlik Gundu Patil,

Age 50 years, Occ: Business,

R/o. No.580, Mahaveer Nagar,

Peeranwadi, Belagavi-590001.

& Respondent

(By Shri S.H.Yadawad, Advocate)

This criminal petition is filed under Section 482 of

Cr.P.C. praying to quash the order dated 19.06.2020, passed

by the VII-JMFC, Belagavi, pending in C.C.No.269/2017,

registered for the offence punishable under Section 138 of

N.I. Act, thereby rejecting the application filed under Section

45 of the Indian Evidence Act, filed by the petitioner and

consequently allow the said application.

This petition coming on for admission, this day, the

Court made the following:

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ORDER

1.

The petitioner is before this Court seeking for

quashing of the order dated 19.06.2020, passed by

the VII-JMFC, Belagavi in C.C.No.269/2017, registered

for the offence under Section 138 of N.I. Act.

2.

By way of above order, the Magistrate has rejected the

application filed under Section 45 of the Indian Evidence

Act filed by the accused-petitioner herein for reference

of the cheque to a forensic expert to opine on the

signature on the said cheque.

3.

The matter being of limited conspectus of reference to

forensic expert, the facts of the matter and dispute

between the parties are not required to be adverted to.

4.

The defense which has been raised by the petitioner in

the proceedings under Section 138 of N.I. Act is that

the cheque relied upon by the complainant is stolen and

forgery committed thereon of the signature of the

petitioner, by doing so and presenting the cheque for

encashment knowing that the said cheque was a

forgery. The cheque was returned dishonoured, the

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complainant has filed the above complaint under

Section 138 of N.I. Act, so as to pressurize the

petitioner to make payment, which is not due by the

petitioner.

5.

Once earlier the petitioner had filed an application

under Section 45 of the Indian Evidence Act for the

reference of the cheque to a forensic expert, which

came to be allowed and thereafter a report submitted

by the said forensic expert.

6.

The forensic expert has opined that the signature was

that of the petitioner, the petitioner wanting to cross-

examine the expert, he was permitted to do so. During

the course of cross-examination, it is alleged that the

said witness has accepted that the report furnished is

not complete and/or it does not bear the signature of

the person certifying the report as also that there is

overwriting in the report.

7.

It is on the basis of these statements that second

application under Section 45 of the Indian Evidence Act

came to be filed by the accused contending that the

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report submitted by the first expert is improper and

that the accused is not agreeable with the same and

therefore, the matter may be referred to a second

expert.

8.

This came to be rejected by the trial Court holding that

the opinion of the expert could only serve as opinion

evidence and not conclusive proof. The allegation

insofar as the complaint is concerned would have to be

established in normal course of trial, the Court could

also examine the cheque on the basis of the different

ink overwriting, if any, and come to a conclusion

thereon and therefore there was no requirement to

refer the matter once again to one another expert.

9.

It is aggrieved by the said order, the petitioner is before

this Court contending that the Magistrate ought to have

referred the matter once again to second expert and in

this regard, Shri N.D. G