Calcutta High Court (Appellete Side)
Jogendra Kumar Ganoria vs Unknown on 1 July, 2022
01.7.2022
Court No.34
Sl. No. 44
SD
CRR 2254 of 2018
In the matter of: Jogendra Kumar Ganoria
....Petitioner.
Mr. Jaydip Basu
Mr. Kaustav Chatterjee
... for the Petitioner.
Affidavit of service filed in Court today be kept with the record.
In spite of service of notice none appears on behalf of the
opposite party/accused.
Mr. Jaydip Basu, learned counsel appearing for the petitioner,
Submits that this court vide order dated 14.03.2017 was pleased to
direct the Trial Court to take necessary steps to follow the mandate of
Section 143(3) of the Negotiable Instrument Act and conclude the trial
at an early date preferably within a period of three months from the
date of communication of this order without granting any unnecessary
adjournment, while disposing an application under section 482 of the
Code of Criminal Procedure being CRR no, 799/2017.
Mr. Basu further submits that vide order dated November 15,
2017 in CRR 3657 of 2017, Hon'ble High Court was pleased to direct
the trial court "to dispose of the Complaint Case No. 1290 of 2015
within a period of six months from the date of receipt of copy of this
order positively without giving any unnecessary adjournment to either of
the parties." But in spite of those specific directions made by the High
Court twice, the trial court had not yet concluded the proceeding and
as per report, it appears that it is still fixed for ER/appearance.
This revisional application however has been directed against
the orders dated 17.01.2018, 02.02.2017, 26.03.2018 and 26.4.2018
passed by the learned Judicial Magistrate, 2nd Court, Howrah in
2
Complaint Case No. C1290 of 2015 filed under Section 138 of the
Negotiable Instruements Act.
The petitioner's contention is that accused in discharge of his
lawful liabilities, issued account payee cheque bearing no.016366
dated 22.6.2015 amounting to Rs.1,50,000/- and when complainant
presented the same for encashment at his banker on 23.6.2015 the
same was returned with the remark 'fund insufficient' vide cheque
return memo dated 23.6.2015.
The complainant/petitioner subsequently sent demand notice
dated 07.7.2015 demanding payment of Rs.1,50,000/- within 15 days
from the receipt thereof, through registered post with
acknowledgement due and the same was received by the opposite
party/accused on 08.7.2015 but even then he failed and neglected to
pay the amount and as such, the petitioner filed complaint case No.
C1290 of 2015 on 29.7.2015. Record reveals that the opposite
party/accused surrendered before the trial court on 21.9.2015 and
obtained bail.
It is further submitted that petitioner's witnesses were examined
and cross-examined, then the accused was also examined under
Section 313 of the Code of Criminal Procedure and examination of
three defence witnesses also concluded on 18.8.2017. After
conclusion of evidence of defence witnesses, the accused/opposite
party had come up with an application for comparison by handwriting
expert complainant's signature appearing on Ex-A and accused
person's signature appearing on Ex4/3 with their admitted signature
appearing on vokalatnama by way of filing an application on
18.8.2017
. The learned trial court vide his order dated 17.01.2018
was pleased to allow the said application filed by the accused and was
pleased to direct the impugned document marked as Exhibit-A along
with the signature of the complainant available on record be send to
the handwriting expert at the cost of the accused to ascertain whether
the handwriting and signature appearing on Exhibit-A is same or not.
Since then the matter is pending for disposal.
Mr. Basu by referring a judgment passed by the Apex Court in
Indian Bank Association and others vs. Union of India and
others contended that Apex Court has given specific direction upon
every Trial Court dealing with N.I. Act cases in paragraph 21(5), which
is quoted herein below:-
"21(5) The Court concerned must ensure that examination-
in-chief, cross-examination and re-examination of the complainant
must be conducted within three months of assigning the case. The
Court has option of accepting affidavits of the witnesses, instead of
examining them in Court. witnesses to the complaint and accused
must be available for cross-examination as and when there is
direction to this effect by the Court."
Needless to say that under the provisions of the Negotiable
Instruments Act, the trial court should make every endeavour to
dispose of the trial under Section 138 of the Negotiable Instruments
Act through summary trial.
On perusal of the aforesaid application filed under section 45
read with section 47 of the Evidence Act it appears that accused has
contended that he had issued one blank cheque by putting his
signature against electricity charges amounting to Rs. 15,000/- and at
the time of receiving such cheque , complainant had handed over one
acknowledgement by putting his signature on a receipt which has been
marked as exhibit 'A' in this case. Said exhibit 'A' i.e.
acknowledgement of cheque of Rs. 15,000/- towards electricity
charges marked Exhibit 'A' was signed by complainant and as such
his signature on exhibit 'A' is required to be compared with his
admitted signature appearing on the Vokalatnama by a handwriting
expert. Accused /opposite party further contended that he never
received any demand notice and as such the A/D card of EMS speed
post which has been exhibited as 4/3 allegedly bearing accused's
signature is actually a manufactured and forged signature and as such
his signature on the on A/D card is also required to be compared
along with his admitted signature appearing in the vokalatnama.
It further appears that complainant/petitioner herein filed
written objection and contended that accused failed to prove his
defence story of payment of electricity charges by any cogent document
and as said Exhibit 'A' being an undated , unstamped document has
got no value in the eye of law and as such prayer made by accused for
sending signature of complainant appearing on Exhibit 'A' and
signature of accused appearing on A/D Card to the hand writing
expert should be rejected.
Learned Trial Court after hearing the parties was pleased to
observe that fair trial includes fair and proper opportunities to the
accused to prove his innocence and as such the application for
sending Exhibit 'A' to hand writing expert is entertainable at this stage
in order to unearth the real truth and following principles of natural
justice he allowed the application against which present revisional
application has been preferred by the complainant/petitioner.
Having considered the facts and circumstances of the case and
materials available in the record, it appears to me that the
acknowledgement receipt in question has already been proved by the
defence witness and marked as Exhibit 'A' and as such the trial court
under an obligation to take judicial notice upon that document at the
time of passing the judgment. Whatever may be probative value of the
said document is a separate issue but when the said document has
been marked as exhibit and when complainant is not willing to send
his signature marked as Exhibit 'A' to the hand writing expert ,
accused cannot have any liability to send it to the hand writing expert.
Moreover from the substance of written objection it appears that
complainant/petitioner has contended that said acknowledgement is
unstamped, undated and does not bear signature of any witnesses
and also contended that said acknowledgment had got no connection
with the cheque because accused failed to prove that complainant ever
provided any electricity to the accused. Accordingly the probative value
of the document has been challenged by the petitioner which can be
the subject matter in issue to determine whether there exists any
legally enforceable debt. Accordingly fact in issue is probative value of
Ex-A and not the signature appearing on Ex-A as it has already been
marked as Ex-A and complainant does not want to compare his
signature appearing on Ex-A.
The question of sending signature of accused /opposite party
on A/D Card also does not find any leg to stand simply because the
object of sending notice is to give an opportunity to the drawer of the
cheque for making payment within specified period of 15 days and
importance of receipt or non-receipt of the notice is relevant for the
purpose of calculation of limitation period and also as to whether the
suit has been filed at a premature stage or not . Here no such case has
been made out and accused appeared in the case and all along
contested the case. Moreover the presumption is always there under
the General Clauses Act, if it is duly paid and duly addressed. Said
signature on A/D Card has already been marked as exhibit 4/3
without any objection on 10.04.2017 before the learned court in
presence of accused. Moreover it is submitted that accused as DW1
himself admitted the fact of receiving the said demand notice by him in
his cross-examination.
In view of aforesaid, prayer for sending his signature on A/D
card for comparison by an handwriting expert is clearly an after
thought and such comparison by a handwriting expert is not at all
required for the purpose of determination as to whether the accused
has committed the offence under section 138 N.I. Act or not.
In view of above learned trial court was erred in law in allowing
/accused/opposite party's petition vide order dated 17.01.2018 and as
such said order is required to be interfered and liable to be set aside.
Having regard to the facts and circumstance of the case the
order dated 17.01.2018 and all subsequent orders passed by learned
Judicial Magistrate 2nd Court, Howrah, in case No. C1290/2015 is
hereby set aside.
Learned Judicial Magistrate, 2nd Court, Howrah is directed to
dispose of the Complaint Case No. C1290 of 2015 positively within a
period three months from the date of receipt of this order, without
being influenced by any observation made in this order.
However, there will be no order as to costs.
Urgent photostat certified copies of this order may be
delivered to the learned Advocates for the parties, if applied for,
upon compliance of all formalities.
(Ajoy Kumar Mukherjee, J.)
