HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Criminal Misc(Pet.) No. 5865/2022

Girish S/o Shri Rajesh Kumar Elani (Sindhi), Aged About 33

Years, R/o House No. 03-A-06 Bapu Nagar Bhilwara Raj.

----Petitioner

Versus

1.

State Of Rajasthan, Through Pp

2.

Lalit Kumar Soni S/o Shri Narayan Lal Soni, R/o Gyan

Bhawan Walhi Gali Gulmandi Bhilwara Raj.

----Respondents

For Petitioner(s)

:

Mr. Prateek Surana

For Respondent(s)

:

Mr. SK Bhati, PP

JUSTICE DINESH MEHTA

Order

16/09/2022

1.

By way of the present petition under Section 482 of the Code

of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’)

the petitioner has challenged order dated 27.07.2022, passed by

learned Special Judicial Magistrate, N.I. Act Cases No.2, Bhilwara

(hereinafter referred to as ‘the trial Court’), whereby petitioner’s

application under Section 45 of the Evidence Act read with Section

193 of the Indian Penal Code has been rejected.

2.

The petitioner is facing trial for offence under Section 138 of

the Negotiable Instruments Ac, for having issued a cheque, which

returned unpaid for insufficiency of funds.

3.

When the case was at the stage of evidence of the

complainant, the petitioner moved an application under Section 45

of the Evidence Act and requested the Court to send document

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[CRLMP-5865/2022]

exhibit P-13 and P-14 for opinion of hand writing expert for

verification of signatures and hand writing.

4.

The trial Court rejected petitioner’s application, inter alia,

observing that the matter is at the stage of cross examination of

the complainant and the petitioner (the accused) can cross-

examine and ask requisite question(s).

5.

Mr. Surana, learned counsel for the petitioner argued that

the trial Court has erred in rejecting petitioner’s application while

contending that the document exhibit P-13 and P-14, which have

been produced by the complainant in support of his stand did not

bear petitioner’s signatures and even handwriting thereon is also

not his.

6.

Learned counsel relied upon judgment of Hon’ble the

Supreme Court rendered in the case of Mrs. Kalyani Baskar

Vs. Mrs. M.S. Sampoornam reported in 2007 CrLR 453 and

argued that in light of the judgment aforesaid, it was incumbent

upon the trial Court to have allowed petitioner’s application.

7.

Heard.

8.

The documents exhibit P-13 and P-14 have been produced

by the complainant in support of his case for which the petitioner

has/had opportunity to cross examine or confront the complainant

on all aspects, including the signatures.

9.

That apart, in light of the presumption given under Section

139 of the Negotiable Instruments Act and considering that the

cases relating to dishonour of cheques under the Negotiable

Instruments Act are required to be tried summarily, this Court is

of the view that the petitioner’s application has rightly been

rejected.

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[CRLMP-5865/2022]

10.

Whether exhibit P-13 and P-14 bear petitioner’s signatures

or not is of hardly any consequence so far as the fact that he has

issued a cheque to the complainant is not in dispute.

10.

The judgment which has been relied upon by Mr. Surana is a

judgment, when the signature on the contentious cheque itself

was in doubt and such being the position, Hon’ble the Supreme

Court has held that the trial Court ought to have sent the cheque

for opinion of the handwriting expert.

11.

The facts in the present case are starkly different. The

petition, therefore, fails.

12.

The stay petition also stands disposed of accordingly.

(DINESH MEHTA),J

289-pooja/-