Smt.Nagaveni W/O Kameshwar ... vs Shri.Rohidas S/O Pandurang Naik
2022 Latest Caselaw 7886 Kant

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                                              CRL.P No. 101961 of 2015


             IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                      DATED THIS THE 1ST DAY OF JUNE, 2022

                                     BEFORE
                    THE HON'BLE MR JUSTICE V.SRISHANANDA
                    CRIMINAL PETITION NO. 101961 OF 2015 (482)
           BETWEEN:

           SMT.NAGAVENI W/O KAMESHWAR AMBIGA
           AGE:43 YEARS, OCC:BUSINESS
           AT POST:ALVEKODI CROSS
           TQ:KUMTA, DIST:KARWAR

                                                        ...PETITIONER

           (BY SRI. DATTATRAYA TIMMANNA HEBBAR, ADVOCATE)

           AND:

           SHRI.ROHIDAS S/O PANDURANG NAIK
           AGE:38 YEARS, OCC:BUSINESS
           AT POST:NEAR ALVEKODI CROSS
           TQ:KUMTA, DIST:KARWAR

                                                      ...RESPONDENT

           (RESPONDENT - SERVED)
MANJANNA
E                 THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.
          PRAYING TO CALL FOR THE RECORDS IN CC NO 716/2012
Digitally
signed by ON THE FILE OF THE ADDL JMFC FOR THE OFFENCE U/S 138
MANJANNA
E         OF N.I.ACT. KUMTA. AND QUASH THE ORDER DATED
           6/11/2015 PASSED ON THE APPLICATION FILED UNDER 45
           AND 73 OF INDIAN EVIDENCE ACT.
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                                      CRL.P No. 101961 of 2015


                              ORDER

1. Heard Sri Dattatraya T. Hebbar, learned counsel for

the petitioner and perused the records.

2. This petition is filed by the petitioner under Section

482 Cr.PC. with the following prayers:

"Wherefore, the Petitioner prays that this Hon'ble Court may be pleased to call for the records in CC No.716/2012 on the file of the Addl. JMFC, Kumta, under Section 138 of the Negotiable Instruments Act, and peruse the same and quash the order dated 6/11/2015 passed on the application filed under 45 and 73 of the Indian Evidence Act in the interest of justice and equity."

3. Brief facts of the case are as under:

The petitioner is facing Criminal trial in CC No.716/2012

for the offence punishable under section 138 of the Negotiable

Instruments Act. After taking cognizance, summons were

issued and accused appeared before the court and participated

in the trial. After completion of the evidence of the

complainant, accused-petitioner adduced her evidence. When

she was about to cross examine, an application came to be filed

CRL.P No. 101961 of 2015

by the accused/petitioner under Sections 73 and 45 of the

Indian Evidence Act with the following prayer:

"It is most humbly submitted that, for the reasons stated in the accompanying affidavit the applicant prays that the Hon'ble Court may be pleased to permit a reputed hand writing expert appointed by Court preferably a Government hand writing expert to examine and take the necessary photos of the cheque produced by the complainant, as well as applicants hand writings taken in the presence of both the parties and their counsel and direct the said expert to give his opinion about the genuineness of the hand writing found on the cheque which was produced by the complainant. And also direct the said expert to give his opinion about the age of the hand writing found on the cheque which was produced by the complainant, and pass such other order or orders as the Hon'ble Court may deem fit and proper in the interest of justice and equity."

4. The said application was opposed by filing written

objections. Thereafter, the learned Trial Magistrate heard the

parties in detail and by order dated 06.11.2015 and dismissed

the application filed by the accused/petitioner. The same is

under challenge before this court.

CRL.P No. 101961 of 2015

5. In the petition, following grounds have been raised:

"That the impugned order of rejection of the application filed by the petitioner/accused rejected against the petitioner by the learned magistrate is illegal, arbitrary and unsustainable in law or on facts and the same is liable to be quashed by this Hon'ble Court.

That the Trial Court was mislead and misdirected at the instance of the complainant to register the complaint against the petitioner which is improper, illegal and contrary to law.

That the court below before taking cognizance has not properly considered the facts of the case, hence the interference of this Hon'ble Court is necessary.

That the court below ought to have considered that the cheque is issued by Petitioner to Respondent as security to the loan transaction are been misused by the Respondent, hence the interference of this Hon'ble Court is necessary.

The petitioner/accused submitted in her affidavit dated 12-3- 2015 that the petitioner is not executed the cheque in favor of the respondent/complainant and it is a rank forgery. And further it iIs alleged by the petitioner that it is

CRL.P No. 101961 of 2015

just and necessary to examine a hand writing expert by comparing the hand writing on the cheque. Hence the interference of this Hon' ble Court is necessary.

That the Court below before taking cognizance ought to have has their evidence of Respondent/Complainant has Considered specifically stated that the petitioner /accused in his presence the contents of cheque and further the court ought to have considered he opinion of the expert. Hence the interference of this Hon'ble Court is necessary.

6. Re-iterating the above grounds, Sri D.T. Hebbar,

learned counsel for the petitioner-accused vehemently

contended that non providing of sufficient opportunity for the

accused to put forth her case, would result in denying fair trial

and therefore, the application ought to have been allowed by

the learned Trial Magistrate.

7. In support of his arguments, he placed reliance on

the Judgments reported in:

(1) 2010(1) KCCR 683 in the case of Shri Ishwar Vs. Sri Suresh;

CRL.P No. 101961 of 2015

(2) AIR (KAR)-2010-0-512 in the case of Ishwar Mahadeevappa Hadimani Vs. Suresh Rachappa Pattepur;

(3) 2014(3) KCCR 2222 in the case of N. Muniswamy Reddy Vs. M. Narayanaswamy.

8. The respondent though served, remained absent

before this court.

9. In the light of the grounds urged in the petition, this

court perused the materials on record.

10. In the case on hand, the signature found on the

cheque is admitted by the petitioner/accused. Under Section

139 of the Negotiable Instruments Act, when the issuance of

cheque and the signature found therein is admitted by the

accused, the complainant enjoys the presumption that the

cheque is issued for the valuable consideration. No doubt, it is

a rebuttal presumption. The accused has to rebut the said

presumption by placing cogent and convincing evidence on

record. In that regard, the accused has stepped into the

witness box and examined herself and thereafter, she has filed

an application as referred to supra. It is the specific case of the

accused that except the signature found in the cheque, other

CRL.P No. 101961 of 2015

writings on the cheque are not written by her and it is written

by somebody else. It is for her to prove by placing cogent

evidence on record as to under what circumstances the cheque

came to be issued and whether at all, she was prevented from

honouring the cheque after issuing the same to the

complainant are all matters that are to be proved by her.

11. The purpose of sending the cheque to the chemical

examiner to find out the age of the ink cannot be entertained

as the accused has not stated before the court as to why she

parted away the cheque to the complainant. Further, she has

not issued any stop payment instructions to the banker. It is

also pertinent to note that though legal notice is served on the

accused-petitioner on 11.05.2012, no reply is sent. If the case

put forth by the petitioner would be true, what prevented the

petitioner to give reply to the notice, is not explained in the

grounds urged in the petition. Further, there cannot be any

dispute as to the principles of law enunciated in the case of

Ishwar referred to supra. Such an opportunity, in fact has not

been provided in the case on hand to rebut the evidence by the

trial court. The accused has not stepped into the witness box

and at the time of cross examination of the complainant,

CRL.P No. 101961 of 2015

present application is filed. In such circumstances, this court is

of the considered opinion that there is no denial of the valuable

right accrued to the accused to lead rebuttal evidence and

there is no denial of fair trial to the accused. On the contrary,

the matter is pending since 2012 and in the absence of any

reply to the legal notice, this court is of the considered opinion

that the application is filed only to protract the proceedings as

far as possible and therefore, the same has not been rightly

considered by the learned Trial Judge and rejected the

application filed by the petitioner. Accordingly, there is no legal

infirmity in the impugned order nor rejection of the application

filed by the petitioner herein referring the cheque to the

chemical examination has not resulted in any denial of rights of

the parties and therefore, this court pass the following:

ORDER

The Petition is rejected.

Sd/-

JUDGE

PL*