Ashok Soni vs N.R. Suryavanshi

D.K. Paliwal, J.—This petition has been filed u/s 482 of Cr.P.C. for quashing the order passed by J.M.F.C. Gwalior in Case No. 1550/2010 dated 11.02.2013, whereby the application of the petitioner u/s 45 and 47 of Evidence Act has been rejected. The facts giving rise to this petition are that the respondent/complainant has filed a private complaint u/s 138 of Negotiable Instruments Act alleging that the petitioner has taken loan of Rs. 60,000/- from the respondent, after that the respondent asked for repayment of loan then the petitioner gave a cheque bearing no. 115209 of Rs. 60,000/- of State Bank of Indore, Patankar Branch, Lashkar dated 3.09.2010. When said cheque was submitted for encashment the same has been returned with a note, ''insufficient fund''. The learned trial Court recorded the statement of the complainant and his witnesses and the case was fixed for defence evidence on 15.01.2013. The petitioner has preferred an application u/s 45 and 47 of Evidence Act and submitted that he has not taken any loan and has not given any cheque to respondent. He has given a blank cheque after signing it as a security before the witnesses and the police on pressure and it is prayed that complainant be directed to get examined by the handwriting expert. This prayer has been disallowed by the trial Court holding that the petitioner has not disputed the signature on the cheque. Being aggrieved the petitioner has preferred this petition.

It is submitted by the learned Counsel for the petitioner that impugned order passed by learned trial Court is not sustainable being perverse and contrary to the principles of law. The petitioner is entitled to rebut the case of the respondent. Adducing evidence in support of the defense is a valuable right of the petitioner. Denial of that right means denial of fair trial. Hence, it is prayed that the order be quashed.

The prayer is opposed by the learned Counsel for the respondent submitting that petitioner has filed an application on defense stage being not dispute. Petitioner has not disputed the signature in the cheque. The prayer made by the petitioner for the examination of the of handwriting on the cheque is malafide. Hence prayed for rejection.

In order to appreciate the contentions of the learned Counsel for the parties, I have perused the record.

From the perusal of the complaint filed u/s 45 and 47 of Evidence Act, Annexure (P-3), it appears that it has been mentioned that in the questioned cheque name of recipient, date and amount had not been written in the handwriting of the accused/petitioner. Accused/petitioner have never taken money from the complainant nor has given cheque for the repayment of loan. It is further stated that petitioner has given a blank cheque after signing as a security before the witnesses and under the pressure of police. Therefore, it is prayed that complainant be directed to send the cheque for examination of the handwriting of the petitioner.

It is pertinent to mention that the petitioner is not denying his signature on the questioned cheque but admitting his signature on the cheque. As per the petitioner, the cheque was given as a security. In view of the fact that the accused/petitioner has given the cheque and admitting his signature, the burden lies on the petitioner to prove that it was given as a security. It also appears that the application for examination by the handwriting expert has been lodged when the case was fixed for recording the defence evidence. While it appears that the complaint has been lodged on 11.10.2010, the filing of this application when the case was fixed for defence evidence, shows that the application has been filed only to protract the trial. The learned Counsel for the petitioner has cited the judgment in the case of Mrs. Kalyani Baskar Vs. Mrs. M.S. Sampornam, , G. Someshwar Rao Vs. Samineni Nageshwar Rao and Another, and T. Nagappa Vs. Y.R. Muralidhar, . The facts of Kalyani Baskar and G. Someshwar Rao(Supra) are entirely different from the instant case. In Kalyani Baskar case (Supra), the permission for examination by the handwriting expert was sought to ascertain genuineness of signature and in G. Someshwar Rao(Supra) case also the dispute was regarding the signatures. In the instant case as noticed above there is no dispute about the genuineness of the signature. The petitioner has admitted his signature in the cheque. Thus, aforesaid case does not help the petitioner''s case. In T. Nagappa (Supra), right of the fair trial of the accused has been recognized by the Hon''ble Apex Court and in exercise of right to defend oneself the accused is entitled to adduce evidence. There is no dispute about this settled legal principles. However, in the present case when signatures are not disputed by the petitioner then the examination of handwriting with regard to amount, name of beneficiary has no relevance. In view of the aforesaid analysis I come to the conclusion that the learned trial Court has rightly rejected the prayer of the petitioner. No ground is made out for exercise of the extra inherent powers of this Court. The petition devoid of any merits and deserves to be dismissed. Hence, it is dismissed.