Delhi High Court
Nand Kumar Jha vs Mohar Kumar Jha on 5 September, 2016
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. No.2495/2016
Date of Decision : 5th September, 2016
NAND KUMAR JHA ..... PETITIONER
Through Mr.Ramesh K. Mishra, Adv.
versus
MOHAR KUMAR JHA ..... RESPONDENT
Through Nemo.
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
P.S.TEJI, J.
1. The present petition has been filed by the petitioner under
Section 482 of the Code of Criminal Procedure praying for setting
aside the order dated 27th May, 2016 passed by the learned
Metropolitan Magistrate, Saket District Court, Delhi in an
application filed by the accused for sending the cheques and
acknowledgement receipt for FSL examination in CC
No.142/6/2014 which is a criminal complaint under Section 138 of
the Negotiable Instruments Act.
2. The facts giving rise to the present petition are that on 5th
September, 2011, the petitioner lodged a police complaint against
the respondent to the effect that the petitioner had taken a loan of
Rs.40,000/- & Rs.30,000/- from the respondent in the month of
August, 2009 which is stated to have been paid back along with
interest. It is submitted by learned counsel for the petitioner that
the petitioner had tendered a few signed blank cheques along with
original passport to the respondent as a security. It is submitted
that after the return of loan with interest, the petitioner demanded
for return of his cheques and passport but the same were not
returned to him. It was further alleged that the respondent tried to
extort money from the petitioner through forged documents.
3. It is further alleged that the respondent issued a legal
demand notice under Section 138 of the N.I. Act dated 12th
October, 2011 to the petitioner in which the respondent alleged
dishonour of cheques amounting to Rs.1,00,000/- and Rs.50,000/-
both dated 26th June, 2011.
4. The respondent filed a complaint case under Section 138 of
the Negotiable Instruments Act in the Court of Learned ACMM,
Saket Court Complex, New Delhi. It is further submitted that the
respondent in the complaint further stated that he had given a
friendly loan of Rs.1,70,000/- to the petitioner on 27th November,
2009 and on 20th May, 2010, the petitioner had also taken
Rs.30,000/- from the respondent. The respondent had alleged that
the petitioner had issued cheques dated 27th June, 2011, 27th July,
2011 for Rs.1,00,000/- & Rs.50,000/- respectively which were
dishonoured.
5. Learned counsel for the petitioner has submitted that the
petitioner in his statement, evidence and cross-examination had
stated that the contents of the receipt dated 27th November, 2009
had been manipulated.
6. It is further submitted that the petitioner moved an
application before the Metropolitan Magistrate for sending the
cheque to Forensic Science Laboratory in which the petitioner
alleged that the amount and date was subsequently written on the
cheque. Therefore, the expert opinion was required regarding the
age of the cheque signed and the other body of the cheque filled.
7. In support of his contention, learned counsel for the
petitioner relied on the pronouncement of Hon'ble Supreme Court
in T. Nagappa Vs. Y.R. Murlidhar (2008) 5 SCC 633.
8. I have heard learned counsel for the petitioner and carefully
perused the available records.
9. 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 regarding the age
of the cheque signed and the other body of the cheque filled to
ascertain whether the cheques were filled and signed by the same
person. It was the consistent stand of the petitioner that the
cheques were not filled and signed by the same person. 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.
10. 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 since
2013, sending the cheque in question to the FSL would take
another four to five years to bring the complaint for conclusion. In
this case, the signature on the cheques is not disputed. Such an
approach of the petitioner cannot be appreciated as it would
tantamount to further delay of the conclusion of the complaint
case. The complaint case was fixed for defence evidence.
Therefore, the petitioner cannot get any assistance from the
judgment in the case of T.Nagappa (supra).
11. In view of the aforementioned facts and circumstances and
the discussion, this Court does not find any illegality or infirmity in
the order dated 27th May, 2016 passed by the Court below.
12. Consequently, the present petition is dismissed.
(P.S.TEJI)
JUDGE
SEPTEMBER 05, 2016
aa
