Delhi High Court
S.Minz vs Madhu Bala Gupta on 18 May, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. No.573/2011
Date of Decision: 18.05.2012
S.MINZ .... PETITIONER
Through: Mr. O.P. Gehlaut, Advocate.
Versus
MADHU BALA GUPTA ......RESPONDENT
Through: Mr. Prashant Sharma, Advocate along
with respondent in person.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This is a revision petition filed against the order of the learned MM
dated 11.11.2011, in the Complaint Case No. 44/2008 under Section 138
of the Negotiable Instruments Act (hereinafter referred to as the "Act")
whereby the learned MM dismissed the application of the petitioner under
Section 45 of the Evidence Act praying for examination of the signatures
on the dishonored cheque by the FSL.
2. The facts necessary for the disposal of the present petition are that
the petitioner issued two cheques bearing cheque no. 549103 dated
17.12.2007 and 549104 dated 26.12.2007 of the amount of Rs. 2.5 lacs
each to the complainant/ respondent. The cheques were dishonored on
presentation to the bank of the complainant/ respondent citing
"insufficient funds". Thereafter, a legal notice was issued and due to non-
payment of the cheque amount, a complaint was filed in the Court of
learned MM under Section 138 of the Act. The prosecution evidence was
recorded and the prosecution witnesses cross-examined by the
petitioner's counsel. Thereafter, the petitioner, in his defense, moved an
application under Section 45 of the Evidence Act for verification of the
signatures on the dishonored cheque by the FSL. This application came to
be dismissed by the learned MM vide order dated 11.11.2011. Hence, the
present petition.
3. The learned counsel for the petitioner submitted that the learned
MM erred in dismissing the application of the petitioner on the ground
that the cheque was dishonored not for the reason, "signature differs", but
for the reason of "insufficient funds". It was submitted that the signatures
on the dishonored cheques were forged and ought to have been verified
by an expert as the bank was not an expert to verify the signatures and
nowadays, the documents are forged with great accuracy and it is very
difficult to distinguish without formal examination by an expert. The
petitioner relies upon Mrs. Kalyani Bhaskar v. Mrs. M.S. Sampornam,
(2008) 2 SCC 258 and P.R. Ramakrishnan v. P. Govindarajan, 2007
CriLJ 1997 in support of his submissions.
4. Per Contra, the learned counsel for the complainant/ respondent
submitted that the application of the petitioner before the trial court under
Section 45 of the Evidence Act, nowhere states that the dishonored
cheques were stolen from the petitioner and thus the question of forgery
does not arise at all. It was submitted that the cheques were not
dishonored by the bank due to falsity of signature, but due to insufficient
funds. Hence, the application of the petitioner for verification of the
signatures on the cheque by an expert is a delaying tactic, as observed by
the learned MM. He relies upon kanshi Ram Bansal v. Suman Malhotra
Crl. M.C. 3876/ 2011 and L.C. Goyal v. Mrs. Suresh joshi & Ors AIR
1999 Supreme Court 2222. It was further submitted that the order of the
learned MM, being an interlocutory order is not amenable to the
revisionary jurisdiction of this Court, hence not maintainable.
5. I have heard the counsel for the parties and perused the evidence
and the case laws cited by the parties.
6. In view of the facts and circumstances of the present case, I am in
agreement with the observations of the learned MM. The bank had not
disputed the signatures of the petitioner on the cheque. The cheques were
dishonored due to insufficiency of funds in the account of petitioner. The
judgment of kalyani Bhaskar (Supra) is clearly distinguishable from the
present case, as in that case the bank manager, during cross-examination
had clearly stated that the signatures on the cheque had not been verified
by the bank at the time of dishonor of the cheque. No such statement has
been made by the bank official in his examination before the learned
MM. Further in the case of P.R. Ramakrishnan (Supra), the Madras
High Court had allowed the petition for verification of signatures on
cheque on the facts of that case, as the reasons given by the trial Court for
dismissing the application of the petitioner for verification of the
signature, was delay in filing of the application, which was not
considered justified. The learned MM in the present case has given
sufficient and cogent reasons for dismissing the application of the
petitioner.
7. In the case of L.C. Goyal (Supra) the Supreme Court observed in
para (8) of its judgment observed as under :
"The complainant alleged that when the appellant
realized that the complainant has come to know
that he has misappropriated a sum of Rs. 25,491,
he gave a cheque for a sum of Rs. 38,000 which is
Ext.C-4. The said cheque was drawn on UCO
Bank and the same was deposited in the Central
Bank of India in the account of Union, viz.,
Siemens' Employees Union, New Delhi. But the
said cheque was dishonored due to insufficient
funds. The appellant denied his signature on Ext.
C-4 and contended that his signature was forged
by the complainant. It is in this context that it was
urged before the Bar Council of India that some
handwriting expert be examined in order to find
out the genuineness of the signature on Ext. C-4.
As stated above, the cheque bounced not on
account of the fact that the signature on Ext. C-4
was not tallying with the specimen signature of the
appellant kept with the Bank, but on account of
insufficient funds. Had the signature on Ext. C-4
been different, the bank would have returned the
same with the remark that the signature on Ext. C-
4 was not tallying with the appellant's specimen
signature kept with the bank. The memos Ext. C-6
and Ext. C-8 issued by the bank clearly show that
signature of the appellant on Ext, C-4 was not
objected to by the bank, but the same was returned
with the remark "insufficient fund". This
circumstance shows that the signature on Ext. C-4
was that of the appellant."
8. In the case of Manda Syamsundra Vs. Kurella Anjaneyachari &
Others 2009(1) DCR 726, the Andhra Pradesh High Court relied upon the
case of HM Satish Vs. B.N. Ashok 2007(3) Crimes 502 and L.C. Goyal
(supra) and held thus;
"In the light of the above decisions and in the light
of the return of the cheque not on the ground of
signature not tallying, no purpose will be served in
sending the document to the handwriting expert
and there are no grounds to interfere with the order
of the lower Court."
9. This Court recently in the case of Kashi Ram Bansal (supra) also
relied upon the decision of L.C. Goyal (supra) and held that in the case of
denial of signature by the drawer of a cheque, the best witness would be
the concerned Bank Manager and not a handwriting expert.
10. In view of the above observations, I find no infirmity with the
order of the learned MM. Hence the petition is dismissed.
M.L. MEHTA, J.
MAY 18, 2012
hg
