N. Manjunath vs K.V. Naveen Kumar

Aravind Kumar, J.—Heard Sri Aditya S. Kumar, learned counsel appearing for the petitioner. Perused the records.

Petitioner has invoked extraordinary jurisdiction of this Court viz., Section 482 of Cr.P.C. and is seeking for quashing of order dated 07.05.2015 passed by the XVIII Additional Chief Metropolitan Magistrate, Bangalore, where under application filed by the petitioner under Section 45 of the Indian Evidence Act Annexure-G came to be dismissed.

Petitioner is an accused in CC No. 12068/2013 and is facing criminal charges before the jurisdictional Court, which proceedings have been initiated by the respondent-complainant under Section 200 Cr.P.C alleging petitioner herein has committed an offence punishable under Section 138 of Negotiable Instruments Act, 1881. It has been contended in the complaint that petitioner/accused is known to complainant and had borrowed a sum of Rs. 3,50,000/- in the month of February 2012, to meet expenses of marriage and had assured the complainant to repay the amount borrowed within two months. On default of such promise, a cheque for Rs. 3,50,000/- is said to have been issued and when presented for collection by complainant it came to be dishonored by the drawees'' Bank for want of funds. Hence, respondent herein has sought for petitioner-accused being tried for offence punishable under Section 138 of Negotiable Instruments Act.

Trial has been concluded and when the matter was at the stage of concluding final arguments, an application under Section 45 of Indian Evidence Act came to be filed by the petitioner- accused with a prayer to forward the dishonored cheque to an hand writing expert for comparison of the hand writing found in the said cheque and also the signature, contending inter alia that accused-petitioner had borrowed a sum of Rs. 30,000/- only from the complainant-respondent with interest at 30% per month in the year 2009 and as a security to the said loan he had issued a blank signed cheque and had not borrowed Rs. 3.50 lakhs as alleged. In order to prove the defence set up by the accused, cheque in question was sought for being referred to the hand writing expert for opinion being rendered in that regard. In support of his submission, he has relied upon the judgment of the Apex Court in the case of T. Nagappa Vs. Y.R. Muralidhar, AIR 2008 SC 2010 : (2010) 1 BC 500 : (2008) 6 JT 153 : (2008) 6 SCALE 642 : (2008) 5 SCC 633 : (2008) AIRSCW 3349 : (2008) 3 Supreme 196 .

At the outset, it is required to be noticed that Apex Court in the case of Gorige Pentaiah Vs. State of A.P. and Others, (2008) CLT 1305 : (2009) CriLJ 350 : (2008) 9 JT 543 : (2008) 11 SCALE 715 : (2008) 12 SCC 531 : (2008) 18 VST 247 , has clearly held that inherent powers is to be exercised by this Court sparingly, carefully and only in situations laid down in Section 482 namely preventing abuse of process of law. However, no hard and fast rule can be laid down in regard to cases in which inherent power can be used to quash proceedings. Keeping these principles in mind when facts on hand is examined, it would indicate that respondent herein had initiated the proceedings against the petitioner-accused by filing a complaint under Section 200 of Cr.P.C. alleging that petitioner has committed an offence punishable under Section 138 of Negotiable Instruments Act, 1881. The signature found on the disputed cheque is not disputed by petitioner/Accused. It is also not disputed by the petitioner that cheque has not been issued by him to the respondent-complainant. Section 20 of Negotiable Instruments Act, 1881 would clearly indicate that the word used ''either wholly blank or having written thereon an incomplete negotiable instrument'' cannot be taken as defence to avoid the liability arising under an negotiable instrument. Thus, even if a blank negotiable instrument is given, it cannot be contended that contents are not filled up by the drawee and said plea cannot be taken as defence to avoid the liability arising there under, once the document produced before Court satisfies the requirements of an negotiable instrument within the meaning of the Act. In other words, it can be noted that the holder of negotiable instrument has the authority to make or complete the instrument as a negotiable one. Keeping this statutory provision in mind when facts on hand are examined, it would indicate that petitioner-accused by filing an application under Section 45 of the Evidence Act sought for cheque being referred to an expert opinion, contending thereunder that cheque was issued to respondent by him for a different transaction. Perusal of said application which is appended the present petition as Annexure-G does not even remotely suggest that complainant having raised a plea that contents of the cheque has been filled up by the complainant or any other person authorized by the complainant. Learned counsel for the petitioner has been unable to demonstrate before this Court as to having suggested to the complainant or his witnesses in their evidence as to who was the scribe of the instrument in question, namely, the dishonored cheque. As such, petitioner cannot be heard to contend at this stage that he would be entitled to seek for disputed cheque being referred to an expert for opinion being namely to ascertain as to who had filled up the cheque. It is not the case of accused that complainant had filled up the cheque. Hence, claim of the present petitioner is examined from this angle with an intention to find out, as to whether this defence had been set up at beginning itself or at the end of the proceedings to defeat the claim of complainant. When so examined, it does not leave any doubt in the mind of this Court that petitioner is attempting to drag on the proceedings before the trial Court on one pretext or the other in as much as no such plea had been raised and depositions of witnesses also do not suggest about accused having raised such a defence. Hence, I do not find any merit in the contentions raised by the learned counsel for the petitioner.

There cannot be any dispute in regard to the principles laid down by the Hon''ble Apex Court in T. Nagappa''s case relied upon by the learned counsel for the petitioner. The facts obtained in the said case would clearly indicate that at first available opportunity accused had raised a plea with regard to disputed cheque and had also filed an application seeking for reference to obtain expert opinion. It was also found that a plea had been put forwarded by the accused to the effect that cheque had been issued in the year 1999 itself and proceedings had been initiated in the year 2004 and to substantiate said defence accused had filed an application for referring the said cheque for expert opinion. In that background Hon''ble Apex Court found that petitioner is entitled for seeking for such reference.

Perusal of deposition of the complainant does not indicate about any suggestion having been made to said witness with regard to the handwriting found in the disputed cheque, is that of the complainant or his authorized person. In that view of the matter, I do not find any infirmity in the order passed by trial court rejecting the application filed by the petitioner for sending the disputed cheque for expert evidence. Hence, criminal petition is dismissed as being devoid of merits.

In view of the main petition having been dismissed I.A.1/2015 also stands dismissed.