Jag Bahadur Singh vs State of Rajasthan and Another

Raghvendra S. Chauhan, J.—The petitioner, Jag Bahadur Singh, is aggrieved by the order dt. 12.01.2012 passed by the Additional Chief Judicial Magistrate, Lalsot, Dausa whereby he had rejected the petitioner''s application under Sec. 45 of the Indian Evidence Act for sending the cheque in dispute to a handwriting expert. The petitioner is also aggrieved by the order dt. 20.06.2012 passed by the Additional Sessions Judge (Fast Track) Bandikui, whereby the learned Judge has upheld the order dt. 12.01.2012, and has dismissed the revision petition filed by the petitioner. The brief facts of the case are that the complainant respondent No. 2, filed a complaint under Sec. 138 of Negotiable Instrument Act for dishonor of cheque for an amount of Rs. 1,66,400/-. After completion of complaint''s evidence, the case was posted for defence evidence. At this stage, the accused-petitioner filed an application for sending the disputed cheque to a handwriting expert with the averments that the writing in the cheque is not his; the complainant has misused the cheque. The said application was dismissed by the trial Court by order dt. 12.01.2012. The petitioner filed a revision petition. However, by order dt. 20.06.2012, the said petition was dismissed. Hence, the present petition before this Court.

Mr. Ram Rakh Sharma, the learned counsel for the petitioner, has raised the following contentions before this Court:-

Firstly, the petitioner has pleaded that he had given a signed blank cheque to the complainant by way of security as both the complainant and the petitioner had business relationship. According to him, the complainant has mis-used the cheques by filling up the amount and the date. In order to buttress his plea, it was essential to send the cheque to a handwriting expert.

Secondly, that in his cross-examination Mohan Singh Chauhan, the complainant, claimed that the cheque was filled up completely by the petitioner. In order to disprove this statement, it was essential to send the cheque for being examined by the handwriting expert.

Thirdly, relying on the case of Mahaveer Prasad Sarraf Vs. Devendra Kumar Sharma and Another , on the case of Jitendra Bansal Vs. Gauri Shankar and on the case of Hanuman Sahaya Sharma vs. Manish Dhamani, 2009 (3) WLC 132, the learned counsel has contended that whenever a doubt is raised by the accused person with regard to the veracity of the cheque, ipso-facto, the cheque should be sent to a handwriting expert. However, in the present case, the learned trial Court as well as the revisional Court have failed to do so. Therefore, both the orders need to be interfered with.

Heard learned counsel for the parties and perused the impugned orders.

The law does not expect an accused to be lax and not to plead his defence at the earliest. After all, the Courts rush to the rescue of a person who is vigilant about his rights/defences. Therefore, someone who is not vigilant and does not persue his case with due diligence cannot expect the Court to come to his rescue.

A bare perusal of the orders dt. 12.01.2012 and dt. 20.06.2012 clearly reveal the carelessness of the petitioner in raising his plea. According to the impugned orders, the complaint was filed on 16.12.2005. The petitioner appeared before the trial Court on 22.02.2007 when he was informed about the summary of the charges preferred against him. The testimony of the complainant was recorded, and the case was fixed for 5.11.2007 for recording the statement of the accused petitioner. However, instead of getting his statement recorded under Sec. 313 Cr.P.C., instead of raising any defence on his behalf, the petitioner failed to appear before the Court from 05.11.2007 till 18.01.2011 i.e. for a period of almost three years. If the petitioner wanted to raise the plea that he had given a signed blank cheque to the complainant, he had ample time to raise the said plea. He also had sufficient time to pray before the trial Court to send the cheque to the handwriting expert. For three long years, the petitioner kept a studied silence, for the reasons best known to him. Thus, by his disappearance, he unnecessarily prolonged the trial. It is only afterwards that, too, at a belated stage, he filed an application praying that the cheque should be sent to a handwriting expert. Therefore, the Courts below are justified in concluding that the petitioner has filed the application in order to delay the trial.

In complaint under the Negotiable Instrument Act, the complainant merely has to prove the fact that he was given a signed cheque by the accused. u/s 139 of the Act, there is presumption that the signed cheque has been given for discharging a liability, or a debt. Therefore, whether the cheque was filled in by the petitioner or by the complainant is an immaterial fact. In case, the petitioner wishes to rebut the said presumption, he is required to produce sufficient evidence to buttress his plea. But the conduct of the petitioner disentitles him from seeking the relief from the Court to send the cheque to a handwriting expert for his opinion.

In catena of cases, the Hon''ble Supreme Court has clearly held that citations are not meant treated as provisions of law. Each case has to be decided on its own peculiar facts and circumstances. The cases cited by the learned counsel are distinguishable from the present case on the basis of factual matrix. Therefore, these cases do not rush to the rescue of the petitioner.

For the reasons stated above, this Court does not find any illegality and perversity in the impugned orders. Thus, the petition is devoid of any merit. It is, hereby, dismissed. The stay application is equally dismissed.