Amarnarayana Babu vs Saraswathamma

Rathnakala, J.—The petitioner herein is alleged in respect of the offence punishable under Section 138 of the Negotiable Instruments Act on the complaint of the respondent herein.

The essence of the allegation was, the accused in respect of hand-loan availed by him issued a cheque for Rs. 4 lakhs, which on presentation bounced with the endorsement "funds insufficient". The accused on appearance pleaded not guilty of the accusations framed by the Court. The complainant entered into trial; after the evidence of the complainant, the statement of the accused under Section 313 of Cr.P.C. was recorded and the accused also adduced evidence. At the time of the arguments, he filed an application under Section 45 of the Indian Evidence Act to send the cheque in question to Forensic Laboratory to find out whether the contents of the cheque in question and a certified copy of another cheque, which is the subject matter in another case initiated by the very same complainant, is in the same handwriting. The application was contested and the learned Magistrate rejected the application by observing that the accused had taken up a stand that he had issued the cheque five years back to the husband of the complainant and the said cheque was blank when he issued the same. To establish the said fact, he can produce the cheque book, the record slip or his bank account extract.

Sri. Shriniwas M. Kulkarni, learned Counsel appearing for the petitioner/accused fairly submits that since Ex. D8 is the certified copy of the cheque, he is not pressing for comparison of the cheque in dispute in the present case with that of Ex. D8. However, in the memo of instructions filed by him, he also sought for a report as to whether the signature found in the disputed cheque is made much earlier than the other contents of the cheque. Since the complainant during her cross-examination had unequivocally stated that it is the accused, who had filled up the cheque, scientific evidence is required to establish that duration of signature vis-�-vis the contents of cheque is of different age. That will touch the merits of the case. The Trial Court without considering his memo of instructions has rejected his application only on the ground that he can produce his cheque book and other documents.

Sri. N. Devaraj, learned Counsel appearing for the respondent/complainant in reply submits that, the application is filed by the accused at the fag end of the trial as a delay tactics. After the Trial Court rejected his application, the accused examined two of his witnesses and thereafter has filed the present petition before this Court and it is not a fit case which warrants intervention of this Court under Section 482 of Cr.P.C., since the Trial Court has considered all the contentions of the accused.

Having heard both the parties and having perused the copy of the cheque in question and also contentions raised by each, the fact, which is not in dispute is, the petitioner right from the beginning had taken the stand that he had issued a blank cheque to the husband of the complainant which must have been filled up later. If the cheque is subjected to scientific investigation about the difference in age between the signature and the other contents of the cheque, that may lend some support for the just and reasonable adjudication of the matter. In that view of the matter, it is in the interest of justice to quash the order impugned.

Accordingly, the petition is allowed. The order dated 6.4.2015 passed in C.C. No. 17473/2013 passed by the XVIII Addl. C.M.M., Bangalore, is hereby quashed. The Trial Court is directed to consider the prayer in the light of the second instruction given by the accused in his memo of instructions annexed to the application filed under Section 45 of the Evidence Act, subject to the condition that the petitioner deposits the required cost and fee of Forensic examination before the Trial Court well in advance before the hearing date.

Both the parties shall appear before the Trial Court on the next date of hearing and if the cost and expenses of the Forensic examination is not deposited in the Court well in advance, his prayer for sending the cheque in question for Forensic Laboratory to consider the second instruction mentioned in the memo of instructions, shall fail.