HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 5027/2021 Rewa Shankar Prajapat S/o Shankar Lal, Aged About 47 Years, B/c Prajapat, R/o Ahmedabad, Gujrat.
----Petitioner Versus
1. Prakashchand Sharma S/o Shiv Lal, Aged About 57 Years, Bhatund, Tehsil Bali, Dist. Pali.
2. State Of Rajasthan, Through Pp
----Respondents For Petitioner(s) : Mr. K.P Raj Singh Deora For Respondent(s) : Mr. AR Chaudhary, PP assisted by Ms. Kamla Gauri Mr. Rakesh Arora HON'BLE MR. JUSTICE FARJAND ALI Order 26/11/2021 Learned counsel for the petitioner submits that the petitioner is facing trial for the accusation of committing offence under the penal provision of Negotiable Instrument Act. During the course of the trial, the accused petitioner moved an application under Section 45 of Indian Evidence Act with the averment that the signatures appended on the cheque in question does not belong to the petitioner as he never handover the cheque in question to the complainant after making his signatures. The said application came to be rejected by the learned Judicial Magistrate, Bali vide order dated 08.02.2017.
The legality, correctness and propriety of the said order, was assailed before the learned Additional Sessions Judge, by way of (Downloaded on 27/11/2021 at 08:54:35 PM) (2 of 5) [CRLMP-5027/2021] filing Revision Petition, but the same has also been dismissed vide order dated 13.08.2021.
Both the orders passed by the Court below have been challenged before this Court by way of filing the instant Misc. petition.
Learned counsel for the petitioner submits that every accused has a right to defend his case and that is akin to the fundamental right guaranteed by the Constitution of India. He submits that the accused has a right to lead his evidence only when the stage of prosecution evidence is complete, and the explanation has been sought under Section 313 of the Cr.P.C, therefore, he has not made any delay in moving the application. He submits that right from the day one it was asserted by him that he never appended his signatures on the cheque in question.
The counsel drew attention of this Court towards the copy of the cheque wherefrom it would be manifested that the signature of the drawer has been crossed at two places and the third signature is appended under the seal.
Learned counsel submits that alteration in any negotiable instrument is to be probed before acting upon the same. He submits that as envisaged in Section 87 of the Negotiable Instruments Act:-
"Any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties"
He thus submits that this is a fit case for interference by this Court where material alteration on the cheque in (Downloaded on 27/11/2021 at 08:54:35 PM) (3 of 5) [CRLMP-5027/2021] question is very much evident. He places reliance on the following judgments rendered by the Hon'ble Supreme Court in the cases of:-
1. T Nagappa Vs. Y.R Muralidhar (Criminal Appeal No. 707 of 2008).
2. Kalyani Baskar Vs. M.S. Sampoornam (Criminal Appeal No. 1293 of 2006).
3. Natasha Singh Vs. Central Bureau of Investigation (Criminal Appeal No. 709 of 2013).
Per contra, learned counsel for the complainant vehemently opposed the submissions as made by the counsel for the petitioner. He submits that the accused petitioner has not raised this issue ever before the Court and lastly, it was raised at the time when both the parties had adduced evidence in respect of their contentions in their pleas. He submits that the said cheque has not been dishonored due to material alteration in the negotiable instrument, rather the same had been dishonored due to insufficiency of funds in the account of the accused petitioner. Counsel relied upon the following judgments:-
1. S. Minz Vs. Madhu Bala Gupta (Crl. Rev. Petiton No. 573/2011).
2. L.C Goyal Vs. Mrs. Suresh Joshi and Ors. (AIR 1999 Supreme Court 2222).
3. Raj Kumar Gupta Vs. State of Rajasthan and Anr. (S.B Cr. Misc. Petition No. 1909/2009). Heard.
After pondering over the submissions made by the counsel for the parties and on going through the entire material as made available by the counsel for the parties, more particularly, the cheque in question. From the naked eyes, it can be seen that the interpolation has been made in the signatures on the cheque in (Downloaded on 27/11/2021 at 08:54:35 PM) (4 of 5) [CRLMP-5027/2021] question. If the accused questions the correctness of the documents and asserts that the signatures appended on the cheque in question were never made by him, he should be given an opportunity for sending the cheque in question to the expert for seeking his opinion in respect of the genuineness of the document. An accused has a right to lead evidence in his defence after the explanation under Section 313 of the Cr.P.C is sought.
The prayer made by the counsel for the petitioner appears to be genuine one as before reaching to a final conclusion regarding the correctness of the signature on the cheque in question, opinion should have been sought from the expert. Section 45 of the Indian Evidence Act provides provisions for the same.
In this view of the matter and the submissions made by the parties, I deem it appropriate to direct learned Judicial Magistrate to send the cheque in question to the FSL for the expert opinion regarding the material alteration/ interpolation made in the signature appended on the cheque.
Accordingly, the Misc. Petition is allowed. The order passed by learned Judicial Magistrate, Bali in regular case No. 243/2010 titled as Prakashchand Sharma Vs. Rewa Shankar Prajapat passed on 08.02.2017 and the order passed by the learned A.S.J in revision are hereby quashed and set-aside. The learned Judicial Magistrate is directed to send the cheque in question to the FSL for the expert opinion as discussed above. Since, the matter is pending since 2010, therefore, this Court deems it proper to direct the court below as well as the FSL that the needful shall be done within three months from the receipt of the order and receipt of the cheque to the FSL.
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(5 of 5) [CRLMP-5027/2021] Accordingly, the petition and the stay application stand disposed of.
(FARJAND ALI),J 186-Faheem (Downloaded on 27/11/2021 at 08:54:35 PM) Powered by TCPDF (www.tcpdf.org)