R. Rakesh vs H.G. Guruprasad

A.N. Venugopal Gowda, J.—Respondent is the complainant and petitioner is the accused in a cheque dishonor case registered as CC No. 1840/2013 on the file of the JMFC, Madikeri.

An application filed by the petitioner under Section 45 r/w Section 73 of Indian Evidence Act, to refer Ex. P1 to an hand writing expert, for opinion and report, having been rejected by the learned Magistrate on 10.06.2014 and a criminal revision petition filed having been dismissed by the learned Sessions Judge, this petition was filed to quash the said orders and to grant the relief prayed in the I.A. filed before the learned Magistrate.

Sri. K. Ranjan Kumar, learned advocate for the petitioner submitted that the orders passed by the Courts below, impugned in this petition, being contrary to the ratio of decision of the Apex Court in 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 and of this Court in Shri Ishwar Vs. Sri Suresh, (2010) 3 BC 538 : (2010) CriLJ 1510 : (2009) ILR (Kar) 4310 : (2010) 1 KCCR 683 , are liable to be quashed. He submitted that there being dispute with regard to the contents of Ex. P1, there is a need for referring Ex. P1 to a hand writing expert for the purpose of furnishing opinion and report and the same would enable the learned Magistrate to decide the case in just and fair manner.

Sri. N. Jagadish Baliga, learned advocate appearing for the respondent, on the other hand made submissions in support of the orders passed by the Courts below. He submitted that the application having been filed prior to the respondent adducing of defense evidence and being premature, was rightly rejected by the learned Magistrate. Learned counsel submitted that there being a presumption in respect of the negotiable instrument - Ex. P1, the issuance of which has not been disputed, there is no ground to grant the relief.

Perused the record and considered the rival contentions.

For the complainant, PWs 1 to 4 have been examined. The cheque in question was marked as Ex. P1. The contents of Ex. P1 was denied by the petitioner i.e., in the reply sent to the statutory notice served by the complainant. Being of the view that there is no denial with regard to issuance of Ex. P1, learned Magistrate has rejected the application and the said order was affirmed in revision. Even though, a reference has been made to the decision in the case of Shri. Ishwar (supra), the same has not been analyzed and appreciated by the learned Sessions Judge.

The petitioner has denied the contents of Ex. P1 which can be seen from the reply sent, to the statutory notice served by the respondent/complainant. The petitioner has maintained the same line of defense during the cross examination of PWs 1 to 4.

The only reason for rejection of I.A. is that the issuance of Ex. P1 being not in dispute, it is unnecessary to send Ex. P1 to a hand writing expert for opinion and report.

In the case of Shri. Ishwar (supra), the case of the accused was, that his cheque was misused and under such circumstance, there is a need to send the same to an hand writing expert for opinion with regard to writing appearing therein. After noticing the ratio of the decisions in the cases of T. Nagappa (supra) and Kalyani Baskar Vs. M.S. Sampoornam , it was held, that an opportunity must be granted to the accused for adducing evidence in rebuttal of the stand taken that the cheque in question has been misused. Denial of such opportunity was held as illegal.

The instant case is identical to the one which came up for consideration in the case of Shri. Ishwar, noticed supra. Despite the said decision having been brought to the notice of learned Session Judge, he has not considered the same. Thus, the impugned orders being perverse, cannot be upheld.

In the result, the petition is allowed and the impugned orders are quashed. I.A. filed before the Trial Court is allowed and the learned Magistrate is directed to send Ex. P1 to a hand writing expert, whose particulars shall be furnished on the next hearing date by both parties. With regard to the fee payable to the expert, learned Magistrate shall fix the same and the applicant shall deposit the amount, within a period of one week from the date the order is passed.