Delhi High Court
Mukesh Bhatia vs Ram Gopal Gupta on 29 August, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 29th, 2016
+ CRL.M.C. 2741/2016
MUKESH BHATIA ..... Petitioner
Through Mr.Gurmeet Singh, Adv.
versus
RAM GOPAL GUPTA ..... Respondent
Through Nemo.
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
P.S.TEJI, J.
1. The present petition has been filed under Section 482 of
Code of Criminal Procedure (hereinafter shall be referred as
Cr.P.C.) read with Article 227 of the Constitution of India for
quashing of order dated 25.05.2016 passed by the learned
Metropolitan Magistrate vide which the application filed by the
petitioner under Section 243(1) and (2) of the Cr.P.C. for sending
the cheque to FSL was dismissed.
2. The facts in brief are that the respondent/complainant had
filed a complaint under Section 138 read with Section 142 of the
Negotiable Instruments Act, 1881 (N.I. Act) against the
petitioner/accused. It was alleged in the complaint that the
petitioner/accused had taken the loan of Rs.2,00,000/- from the
respondent/complainant and to repay the said loan amount, he
issued a cheque No.005093 dated 12.12.2008 for a sum of
Rs.2,00,000/-. When the said cheque was presented for
encashment by the respondent/complainant, the same could not be
encashed and was dishonoured. The respondent/ complainant
served a legal notice dated 30.12.2008 upon the petitioner/accused
and thereafter filed the complaint.
3. During the pendency of the complaint case, petitioner/
accused moved the application under Section 243(1) and (2) of the
N.I. Act which was dismissed by the learned Magistrate vide
impugned order dated 25.05.2016. Feeling aggrieved by the
dismissal of the application, the instant petition has been preferred
by the petitioner.
4. Arguments advanced by the learned counsel for the
petitioner were heard.
5. Argument advanced by the learned counsel for the petitioner
was that opportunity of rebuttal must be granted to the accused for
adducing evidence and the accused is having a right to defend
himself. It was further argued that the petitioner can prove his
defence only after getting a report from the FSL that the signatures
on the cheque were not of him. It was the consistent stand of the
petitioner that the cheque in question did not bear his signatures.
Counsel for the petitioner has relied upon a judgment in the case of
T.Nagappa v. Y.R. Muralidhar (2008) 5 SCC 633 in which it was
observed that it is the accused who knows how to prove his
defence and the court being the master of the proceedings must
determine as to whether the application filed by the accused under
sub-section (2) of Section 243 is bona fide or not. It was further
observed that ordinarily an accused should be allowed to approach
the court for obtaining its assistance with regard to summoning of
witnesses etc.
6. It is apparent from the record that the complaint in question
was filed in the year 2009. The respondent/complainant as well as
petitioner/accused have already adduced their respective evidence
before the trial court. It is further apparent from the record that the
defence evidence has already been closed on 30.10.2013 and since
then the matter was pending for final arguments. When the matter
was fixed for final arguments, the application for sending the
cheque in question to FSL was moved by the petitioner/accused.
7. This Court has already observed in several cases that once a
document is referred to FSL or CFSL, it normally takes four to five
years in obtaining report. Since the complaint is pending for the
last about 17 years, sending the cheque in question to the FSL
would take another four to five years to bring the complaint for
conclusion. The petitioner/accused has not moved any such
application during the entire trial and the application was moved
only when the matter was fixed for final arguments. Such an
approach of the petitioner cannot be appreciated as it would
tantamount to further delay of the conclusion of the complaint
case. Therefore, the petitioner cannot get any assistance from the
judgment in the case of T.Nagappa (supra).
8. In view of the aforementioned facts and circumstances and
the discussion, this Court does not find any illegality or infirmity in
the order dated 25.05.2016 passed by the Court below.
9. Consequently, the present petition and application Crl.M.A.
11725/2016 are dismissed.
(P.S.TEJI)
JUDGE
AUGUST 29, 2016
dd
