Jharkhand High Court
Jauhar Ansari vs The State Of Jharkhand on 2 September, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2660 of 2018
Jauhar Ansari, S/o Sarwar Ansari, aged about 52 years, R/o
village- Bhandara, P.O. & P.S.- Bhandara, Dist. - Lohardaga
...... Petitioner
Versus
1.
The State of Jharkhand
2. Maqbool Ansari, S/o Late Sahadat Ansari, R/o Village -
Bhandara, P.O. & P.S.- Bhandara, Dist.- Lohardaga
..... Opposite Parties
For the Petitioner :Mr. Mritunjay Chaudhary, Adv.
For the State : Mr. Rajesh Kumar, Addl. PP
For the O.P. No. 2 : Mr. Rajesh Kumar, Adv.
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the
jurisdiction of this Court under Section 482 Cr.P.C. with a prayer
for setting aside the order dated 11.06.2018 passed by learned
SDJM, Lohardaga in Complaint Case no. 214 of 2015 whereby and
where under the petition filed by the accused person of the case
for sending the cheque for examination by handwriting expert,
has been rejected.
3. The brief fact of the case is that the petitioner is the accused
person of the said case involving the offence punishable under
Section 138 of N.I. Act. The petitioner filed a petition on 20.02.2015
claiming that the dishonoured of cheque does not bear the
signature of the petitioner. The amount mentioned therein and the
date mentioned in the cheque is also not in handwriting of the
petitioner, hence, the cheque be sent to handwriting expert.
Leaned SDJM, considering the fact that the cheque was
dishonored, not for mismatching of the signature of the drawer of
the cheque but for insufficiency of fund in the account and relied
upon a judgment of the co-ordinate Bench in the case of
Dayanand Gupta vs. The State of Jharkhand & Ors. reported in
2016 3 JLJR 352 wherein, it was observed by the co-ordinate
Bench that there is no provision in law which prescribes that the
cheque shall be filled up by the drawer himself and observed that
the petition has been filed to prolong the case and rejected the
same.
4. It is submitted by the learned counsel for the petitioner that the
cheque, for dishonor of which the complaint case no. 214 of 2015
has been instituted, has never been given by the petitioner to the
complainant but same was lost and the same was misused by the
complainant, and this case has been instituted. Hence, it is
submitted that the petitioner will be put to great disadvantage, if
cheque is not sent to the handwriting expert, hence, it is submitted
that the prayer as prayed for in this criminal miscellaneous
petition be allowed.
5. Learned Addl. P.P. and learned counsel for the opp. party no. 2 on
the other hand vehemently oppose the prayer of the petitioner
and submits that it is crystal clear from the complaint itself that
even though the petitioner was served with the legal notice,
demanding the cheque amount, the petitioner never took the
hardship of replying to the said notice that he has not issued the
cheque, or he did not put his signature on the cheque nor during
the cross-examination of the complainant, such specific question
was put to the complainant- who was examined during the trial,
as a witness of the case. It is next submitted that had there been
any discrepancy in the signature of the petitioner appearing in the
cheque and the specimen signature available in the bank, in the
cheque return memo, it must have been mentioned by the
concerned bank that the cheque was dishonored because of the
signature appearing in the cheque, not tallying with the specimen
signature of the petitioner available with the bank and having not
done so and as the case is basically for dishonor of the cheque
because of insufficiency of fund, hence, it is submitted that no
illegality has been committed by learned magistrate in rejecting
the prayer of the petitioner, upon forming an opinion that the
petition has been filed to prolong the case, hence, it is submitted
that this criminal miscellaneous petition being without any merit
be dismissed.
6. Having heard the submissions made at the Bar and after going
through the materials in the record, it is pertinent to mention here
that it is a settled principle of law that expert's evidence as to
handwriting or signature is opinion evidence, and it can rarely, if
ever, can take place of substantive evidence.
7. Now coming to the facts of the case, the undisputed facts remains
that even though petitioner received the demand notice, issued by
the complainant, intimating dishonor of cheque and demanding
of the payment of the cheque amount, the petitioner has not
replied to the same nor taken the plea that he has never issued the
cheque or he did not sign the cheque and no specific question
regarding the same has been put in the cross-examination of the
witnesses of the complainant examined in this case, as submitted
by the learned counsel for the opp. party no. 2. The cheque is
dishonored because of insufficiency of fund in the account and
not because of mismatch of signature appearing in the cheque and
the specimen signature.
8. Under such circumstances, this court is of the considered view
that as the SDJM, Lohardaga has rejected the petition after
forming an opinion that the petition was filed only to prolong the
case, the same do not suffer from any illegality warranting
interference of this Court in exercise of its power under section
482 of the Code of Criminal Procedure, hence, this criminal
miscellaneous petition being without any merit is dismissed.
9. In view of the dismissal of this criminal miscellaneous petition,
the interim order, passed earlier, stands vacated.
10. The Registry is directed to intimate the court concerned forthwith.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated, the 2nd September, 2024
Smita /AFR
