Delhi High Court
Khanna Traders vs Scholar Publishing House P.Ltd. & ... on 14 August, 2015
Author: Sunil Gaur
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 14, 2015
+ CRL.M.C.1906/2013 & CRL.M.A.5874/2014
KHANNA TRADERS .....Petitioner
Through: Mr. Gaurang Kainth, Mrs. Biji
Rajesh & Mr. Sujoy Chatterjee,
Advocates
versus
SCHOLAR PUBLISHING HOUSE P. LTD.
& ANR. .... Respondents
Through: Mr. Chirag Jamwal & Mr. Ajay
Upadhyay, Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
In proceedings under Section 138 of Negotiable Instruments Act,
1881 petitioner is a complainant, who seeks quashing of trial court's
order of 23rd February, 2013 and revisional court's order of 3th April,
2013 vide which petitioner's prayer for determination by forensic science
expert as to whether endorsements made on the back of the cheques in
question (Ex.C1/D4 and C1/D5) were made before or after putting the
seal by the drawee bank is declined. Both the courts below have held that
the application for such expert opinion has been filed after delay of six
Crl.M.C.No.1906/2013 Page 1
years and the genuineness of the cheques in question was not disputed
and so at the fag end petitioner cannot be allowed to fill in the lacuna. At
the hearing, learned counsel for petitioner submits that delay of six years
cannot stand in the way of petitioner for the reason that another prayer of
petitioner which was also after delay of six years for the recall of official
from the concerned bank already stands allowed by the impugned orders
and so on the ground of delay, scientific examination of the cheques in
question cannot be denied to petitioner, otherwise it will cause
miscarriage of justice.
Learned counsel for respondent-accused supports the impugned
order and submits that there is no illegality in the impugned orders as the
endorsements on the cheques in question were admittedly made by
respondent-accused.
Upon hearing and on perusal of impugned orders and material on
trial court record, I find that petitioner cannot be non-suited on the ground
of delay because another prayer of petitioner which was similarly delayed
has been already allowed by the courts below. On bare perusal of
cheques in question and in view of evidence of Branch Manager of the
bank in question, I do find that the question whether the endorsements on
the back of these cheques was made at the time of tendering or thereafter
needs to be examined as it goes to the root of the matter. During the
course of hearing, it was brought to the notice of this Court that by the
electron microscopic examination of the endorsements on the back of the
cheques, it can be determined whether the ink of the pen is above or
below the stamp of the concerned Bank. It was also submitted on behalf
of petitioner that such comparison is essential for just decision of the case
Crl.M.C.No.1906/2013 Page 2
and petitioner ought to be permitted at its expense to get the aforesaid
scientific examination done from a private expert as it would cause no
prejudice to respondent-accused who has right to cross examine such an
expert as and when he deposes.
In the considered opinion of this Court, the scientific examination
of the endorsements on the back of cheques in question is essential to
determine whether the ink of the endorsements is below or above the
Bank stamp. Impugned orders are accordingly quashed with direction to
trial court to permit petitioner to get a scientific examination on the
endorsements on the back of the cheques in question from a private
expert at the expense of petitioner and this exercise be got conducted with
expedition.
With aforesaid direction, this petition is disposed of while not
commenting upon merits of this case, lest it may prejudice either side at
trial.
Trial court record be sent back forthwith.
(SUNIL GAUR)
JUDGE
AUGUST 14, 2015
vn
Crl.M.C.No.1906/2013 Page 3
