Jai Prakash vs State of Rajasthan and Another

Sunil Kumar Garg, J.—Heard at admission stage.

All the above misc. petitions are being decided by this common order as all of them involve identical controversy and question of law is also same in all the misc. petitions.

MISC. PETITION N0.246/2004.

This misc. petition u/s 482 Cr.P.C. has been filed by the accused petitioner against the judgment dtd.5.3.2004 passed by the learned Additional Sessions Judge No.1 in Criminal Revision No. 149/2003 by which the learned Additional Sessions Judge No.1, Sri Ganganagar dismissed the revision petition filed by the accused petitioner and upheld the order dtd. 19.9.2003 passed by the learned additional Chief Judicial Magistrate, Sri Ganganagar in Criminal Case No.546/2001 whereby learned Judicial Magistrate while allowing the application filed by the accused petitioner u/s 73 of the Evidence Act, directed comparison of hand-writing of complainant on the cheques in question instead of accused petitioner himself, by the hand-writing expert.

It arises in the following circumstances:-

(i) That the respondent No.2-compiainant filed a complaint against the accused petitioner u/s 138 of the Negotiable Instruments Act, 1881 on account of dishonour of cheque issued by the petitioner. Thereafter on being summoned, the accused petitioner appeared before the trial Court and when the statement of respondent No.2 complainant was being recorded in the court, a suggestion was made to the complainant on behalf of the counsel for the accused that name and amount in the disputed cheque has been filled in up by the complainant and not by the accused petitioner, but that suggestion was denied by the respondent No.2 complainant.

(ii) Thereafter the accused petitioner moved an application u/s 73 of the Evidence Act stating that the accused petitioner issued blank cheques and handed over to respondent No.2-compiainant and when the cheques were in the custody of the complainant-respondent No.2, the complainant-respondent No.2 filled up these cheques by adding his own name, date and amount and according to the petitioner, this act itself amounts to material alteration and renders the cheque invalid and therefore, a prayer was made that the hand-writing on the disputed cheques be compared with the hand-writing of the accused petitioner through hand-writing expert.

(iii) The learned Additional Chief Judicial Magistrate after hearing both the parties through order dtd.19.9.2003 allowed the application filed u/s 73 of the Evidence Act, but instead of comparing the hand-writing of the accused petitioner, the learned Magistrate ordered that the hand-writing of respondent No.2 complainant be compared with the entries made in the disputed cheques.

(iv) Being aggrieved by the order dtd.19.9.2003, the accused petitioner filed a revision petition before the learned Sessions Judge, Sri Ganganagar and the learned Additional Sessions Judge No.1, Sri Ganganagar through judgment dtd.5.3.2004 rejected the same and upheld the order dtd. 19.9.2003 passed by the learned Magistrate. Hence, this misc. petition.

In my opinion, the impugned order dtd.19.9.2003 passed by the learned Judicial Magistrate and judgment dtd.5.3.2004 passed by the learned Additional Sessions Judge cannot be said to have suffered from basic infirmity or illegality.

There is no dispute on the point that now on the disputed cheques, name, date and amount have been mentioned, but who mentioned the same, it is in dispute.

There is also no dispute on the point that during the course of recording of statement of complainant before the learned Judicial Magistrate, a suggestion was put on behalf of the accused petitioner that these entries on the disputed cheques were made by the complainant himself, but the complainant did not accept that suggestion.

There is also no dispute on the point that thereafter present application u/s 73 of the Indian Evidence Act was moved by the accused petitioner with a prayer that his hand-writing be compared with the writing on the disputed cheque, by hand-writing expert.

There is also no dispute on the point that on the application of the accused petitioner, the learned Magistrate through order dtd.19.9.2003, instead of directing comparison of hand-writing of the accused petitioner with the writing on the disputed cheques, ordered that hand-writing of the complainant-respondent No.2 be got compared with the writing on the disputed cheque.

In my opinion, if the learned Magistrate has directed comparison of hand writing of complainant-respondent No.2 with the disputed hand-writing on the cheques, he has committed no illegality or irregularity.

The words "any person" occurred in Section 73 of the Indian Evidence Act are wide enough to cover all the persons including the complainant as well as accused persons, since both are present in the Court.

Thus, Section 73 of the Indian Evidence Act empowers the court to direct any person present before it to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person or for sending to handwriting expert. However, there is no element of compulsion u/s 73 of the Indian Evidence Act. In view of this fact, though the application was moved by the accused petitioner for comparing the hand-writing of the accused, if the learned Magistrate has ordered that hand-writing of the complainant-respondent No.2 be compared with the hand-writing of disputed cheque, there is nothing wrong in that.

So far as argument that the cheque in question becomes void because of material alteration as provided in Section 87 of the Negotiable Instrument Act is concerned, this fact cannot be decided at this stage because of the simple reason that in the present case, there is no dispute on the point that the blank cheque was issued by the accused petitioner and was handed over to respondent No.2, but whether the cheque was given blank or not, this point it is dispute and unless and until this point is decided, the cheque in question cannot be rendered void.

So far as argument that the application was moved with a prayer that the hand writing of accused petitioner be compared by the hand-writing expert is concerned, it may be stated here that the learned Magistrate in his impugned order dtd.19.9.2003 clearly observed that accused petitioner had right to prove his innocence. If the petitioner is not satisfied with the report of hand-writing expert so called by the trial Court, he would have liberty to call his own expert to prove his innocence, but that stage has not come so far.

For the reasons mentioned above, there is no force in this misc. petition and the same deserves to be dismissed.

MISC. PETITION N0.247/04 AND 248/04.

Both the above misc. petition raise the same controversy which has been decided above in S.B. Criminal Misc. Petition No.246/2004/2001 and thus, for the reasons given in Misc. Petition No.246/2004, the Misc. Petition No.247/2004 and 248/2004 also deserves to be dismissed.

For the reasons mentioned above, the misc. petitions No.246/2004,247/2004 and 248/2004 are dismissed.