Delhi High Court
Gunender Kumar Jain vs Heritage Design Pvt. Ltd. & Anr. on 7 January, 2015
Author: Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: January 07, 2015
+ CRL.M.C. 4569/2013 & Crl.M.A. No.16361/2013
GUNENDER KUMAR JAIN ..... Petitioner
Through: Mr. Prem Kumar, Mr. Rajiv
Sharma, Mr. Rakesh Kumar &
Ms. Sakshi Sachdeva, Advocates
versus
HERITAGE DESIGN PVT. LTD. &ANR. ..... Respondents
Through: Mr. Dharmendra Priani &
Mr. Akshay Kapoor, Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
In proceedings under Section 138 of The Negotiable Instruments
Act, 1881 pertaining to cheque of `44 lacs odd, application of
petitioner/accused for sending the cheque in question to an expert to
obtain an opinion regarding history of the writing on the cheque, has been
declined by the trial court as well as by the Revisional Court.
At the hearing, learned counsel for petitioner had vehemently
submitted that both the courts below have palpably erred in observing
that issuance of cheque in question and the signatures thereon are not
disputed. Learned counsel for petitioner contended that only the
signatures on the cheque in question are admitted but the writing
Crl. M.C. No.4569/2013 Page 1
thereupon is disputed. It was pointed out that in the first instance, cheque
in question was returned back to the respondent-complainant with the
remarks that "the cheque was mutilated" and after furnishing of bank
guarantee, it was again tendered by the complainant/respondent in order
to cheat the petitioner. It was pointed out that the cheque in question is
forged and fabricated and it is evident from the cheque number that this
cheque was for `80,000/- only and it was encashed on 17th October, 2000
by Asha Fab.
For the first time, learned counsel for petitioner had placed on
record photocopy of Statement of Accounts from petitioner's banker and
had submitted that for fair trial, an opportunity ought to be granted to
petitioner to prove the afore-said Bank's Statement of Account and
covering letter of 13th December, 2008. Reliance was placed upon
decisions in T. Nagappa Vs. Y.R. Muralidhar (2008) 5 SCC 633 and G.
Someshwar Rao Vs. Samineni Nageshwar Rao & anr. AIR 2009 SC
(supp) 2050 to submit that an opportunity must be granted to accused for
adducing evidence to rebut statutory presumption raised against
petitioner/accused. Thus, it was submitted that the impugned orders are
liable to be quashed and petitioner's application ought to be allowed to
obtain an expert opinion regarding the cheque in question and to prove
the Statement of Account of petitioner's banker.
Learned counsel for respondent submitted that there is no infirmity
in the impugned orders and petitioner's witness Ajay Kant (DW-2) has
already deposed in evidence that petitioner used to only sign the cheques
in Hindi and rest of the coloumns were filled up by the staff and the stand
taken by petitioner is contrary to the stand taken at the initial stage and at
Crl. M.C. No.4569/2013 Page 2
the stage of recording of statement under Section 313 of the Cr.P.C. It
was pointed out that petitioner has categorically maintained till now that
the cheque in dispute was given as blank signed cheque for the purpose of
security and not towards existing debt or liability. Lastly, it was
submitted on behalf of the respondent that decisions relied upon are of no
avail to the case of the petitioner in view of the aforesaid stand taken by
petitioner at trial. In support of his submissions, learned counsel for
respondent placed reliance upon decisions in Union of India Vs. Jyoti
Prakash Miter AIR 1971 SC 1093 & Ravi Chopra Vs. State & anr. 2008
[2] JCC [NI] 169.
After having heard both the sides and on perusal of the impugned
orders, material on record and the decisions cited, I find that it is open to
an accused to obtain an expert opinion to rebut the statutory presumption
raised against him in proceedings under the Negotiable Instruments Act
but in the instant case, I find that the decisions relied upon by petitioner
are of no avail for the reason that the stand taken by petitioner from the
very beginning is that the cheque in question was issued as a security
cheque. Regarding the writing on the cheque in question, petitioner's
witness Ajay Kant (DW-2) has already deposed that petitioner used to
sign the cheques in Hindi and rest of the cheque was filled up by the staff.
On the aspect of Statement of Account of petitioner's banker, this Court
finds that the series of the cheque reflected in the afore-said Statement of
Account of petitioner is not given and so, it cannot be said that it was the
same cheque, which was encashed in the year 2000.
In view of the aforesaid, petitioner's application for getting an
expert opinion in respect of the cheque in question has been rightly
Crl. M.C. No.4569/2013 Page 3
declined by the courts below and there is no perversity in the orders of the
courts below.
This petition and application are accordingly dismissed while
making it clear that any observations made in this order shall have no
bearing on merits of the case at trial.
(SUNIL GAUR)
JUDGE
JANUARY 07, 2015
r
Crl. M.C. No.4569/2013 Page 4
