Jitendra Bansal vs Gaud Shankar

C.M. Totla, J.—Petitioner is facing trial for offence u/s 138 N.I. Act whose application for examination of cheque (regarding his signatures/handwriting) by expert is rejected by learned Magistrate and petitioner seeks examination by an expert.

Respondent has raised a preliminary objection to the effect that such petition u/s 482 Cr. P.C. so as to defeat the provisions of Section 397(2) Cr. P.C. is not maintainable. In support of contention, Learned Counsel relied on decision in case of Mastan Singh Pannu v. Harjinder Singh, 2007 (3) CCC 151 (Raj) : 2007 (1) NLJ 286 (Raj.)

Learned Counsel for the petitioner contended that the facts of present case are altogether different and petitioner accused denies the signature itself, therefore, preliminary objection in this petition is not maintainable.

On behalf of respondent, it is contended that learned Magistrate has rejected the application on two grounds: (i) the application for delaying; (ii) burden of proof regarding non-issuance of cheque, etc., is on applicant. Further stated in the order is that cheque was submitted three to the Bank and each time dishonored and in no memo Bank stated to the effect that signatures do not tally.

For petitioner, it is stated that since cheque was returned for insufficiency of funds, no necessity arose to hamper for examination of signature on the cheque and application is presented at the very early stage before the beginning of complainant''s evidence. In support of contention, Learned Counsel relied on a decision reported in Mrs. Kalyani Baskar Vs. Mrs. M.S. Sampornam, .

Learned Counsel for the respondent complainant contended that the application is for delaying the process - 2 to 3 adjournments were sought for compounding - when cheques are dishonored, that shows that signatures are not disputed by Bank - in support by contentions, reliance placed on decision of Kamataka High Court reported in H.M. Satish v. B.K. Ashok 2007(2) CCC 328 (Kam) : 2007(2) CCC 549 (Kamataka) : 2007(2) Kar. LJ 479.

Considered the arguments. The inherent powers of the court under the provisions of Section 482 Cr. P.C. are to be sparingly exercised. Circumvention of Section 397(2) Cr. P.C. or any other provision Cannot be in the garb of Section 482 Cr. P.C. In this case, petitioner seems to have outrightly denied the issuance of cheque, his writing and his signatures as well and the proceedings are at the initial stage, so in the opinion of this Court, to secure the ends of justice, it will be proper to allow examination of cheque by an expert.

Accordingly, the misc. petition is allowed. It is ordered that Magistrate shall allow expert examination of writing and signature on cheque (as requested by petitioner vide application) and necessary appropriate conditions shall be as directed by the Magistrate and trial court may also proceed further while the process of examination by an expert is on.