Smt. Pushpa vs B.P Umesh
2022 Latest Caselaw 12313 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 11TH DAY OF OCTOBER, 2022

                         BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

           CRIMINAL PETITION No.8602 OF 2022

BETWEEN

SMT. PUSHPA
W/O SIDDARAJU
AGED ABOUT 41 YEARS
R/O NO 41, SRINIVAS NAGAR
4TH CROSS, MADDURAMMA BADAVANE
SUNKADAKATTE
BENGALURU - 560091

PROPRIETOR OF CHANDAN ENTERPRISES
SPECIALIST IN INDUSTRIAL POWDER COATING
AND ALL TYPES OF PAINTING
NO 17 ANDRAHALLI MAIN ROAD
BYRAVESHWARA INDUSTRIAL AREA
VISHWANEEDAM POST
BENGALURU - 560 091                     ... PETITIONER

(BY SRI SHANTAPPA B. HALLI, ADVOCATE)

AND

B.P UMESH
S/O LATE PAPANNA
AGED ABOUT 43 YEARS
R/O NO 663 NEARS MUNESHWARA TEMPLE
LAVAKUSHA NAGAR
LAGGERE
BENGALURU - 560058
                                         ... RESPONDENT
(BY SRI T.N. GOPALA GOWDA, ADVOCATE)
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     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE ORDER PASSED BY THE
LEARNED XX ACMM, BANGALORE ON I.As FILED UNDER
SECTION 45 OF INDIAN EVIDENCE ACT IN C.C.NO.24402/2018
DATED 16.08.2022 VIDE ANNEXURE-D.

      THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:

                              ORDER

This petition is filed by the petitioner-accused under

Section 482 of Cr.P.C. for setting aside the order passed

by the XX Additional Chief Metropolitan Magistrate,

Bengaluru in C.C.No.24402/2018 dated 16.08.2022 on the

application filed by the petitioner under Section 45 of the

Indian Evidence Act, 1872.

2. Heard the arguments of learned counsel for the

petitioner and learned counsel for the respondent.

3. The case of the petitioner is that the

respondent is the complainant before the trial Court who

filed a complaint under Section 200 of Cr.P.C. for the

offence punishable under Section 138 of N.I. Act for having

dishonour of the cheque for Rs.10.00 lakhs said to be

issued by the petitioner to the respondent. After taking

the cognizance, the trial Court issued summons to this

petitioner, he appeared before the Court and denied the

charges. Thereafter, the complainant examined himself as

witness, got marked the documents and the case of the

accused was one of the total denial, wherein, the

complainant has produced and marked Ex.P.12-the loan

agreement which is said to be executed by the petitioner-

accused on 23.09.2017 which was denied by the petitioner

in the cross-examination and also the petitioner is said to

be produced Ex.D.7-the endorsement issued by the Bar

Association stating that the stamp paper (non-judicial

paper) said to be prepared a loan agreement by the

complainant was not at all sold in the year 2017, the

alleged date of its execution and it was sold only in the

year 2018 i.e., on 03.05.2018. Based upon this document,

the petitioner counsel filed an application under Section 45

of the Indian Evidence Act for referring the Ex.P.12-loan

agreement to the FSL for expert opinion which was

dismissed by the trial Court. Hence, he is before this

Court.

4. The learned counsel for the petitioner has

contended that this document i.e., loan agreement is

essential for considering and this document is not at all

executed by the petitioner-accused in favour of the

complainant and it is created document. In order to prove

the age of writings, it is necessary to refer Ex.P.12 to the

FSL for obtaining expert opinion and if the application is

allowed, no prejudice would be caused to the complainant

case. Hence, prayed for allowing the same. Learned

counsel also relied upon the judgments of the Hon'ble

Supreme Court as well as the Bombay High Court.

5. Per contra, learned counsel for the respondent

- complainant has objected the petition and contended that

the case is based upon the cheque which is admitted by

the accused in the evidence and therefore, the question of

referring the Ex.P.12-loan agreement which is a

supplementary document is not necessary to refer the

same to the Forensic Science Lab and there is no reason

assigned by the accused in the application for referring

Ex.P.12 to the FSL. Therefore, the trial Court has rightly

rejected the application. He also contended that the

application filed by the petitioner after the evidence and

also arguments of the complainant before the trial Court

and the only intention to drag the matter, this application

came to be filed. Hence, prayed for dismissing the petition.

The point that arise for my consideration is :

"Whether the document-Ex.P.12 is required to be referred to the FSL for getting expert opinion and the order of the trial Court is liable to be interfered with?

6. Having heard the arguments and on perusal of

the records, it is not in dispute that the petitioner is an

accused before the trial Court facing the trial under section

139 N.I. Act, where, it is alleged by the respondent-

complainant that the cheque was issued by this petitioner

on 06.06.2018 to discharge the loan as per the loan

agreement dated 23.09.2017. After taking cognizance, the

trial Court commenced the evidence, the complainant

already examined as PW.1 and has got marked the cheque

and Ex.P.12-the loan agreement dated 23.09.2017 also

marked by the complainant where the accused is denied

the execution of Ex.P.12. As per Ex.D.7-the stamp paper

was not at all purchased as on 23.09.2017, but the same

was purchased only on 03.05.2018 as per the

endorsement issued by the Vakeelara Sangha, where they

have sold the stamp paper. The only contention is that the

case is not based upon the loan agreement, but, it is based

upon the cheque which is said to be issued by the accused

which was dishonored due to insufficient funds. The

Hon'ble Supreme Court in the case of T.Nagappa vs.

Y.R.Muralidhar reported in AIR 2008 SC 2010, where

the trial Court refused to refer the cheque in question to

the FSL for getting the report and the High Court also

upheld the same. But the Supreme Court reversed the

judgment and referred the cheque in question for FSL for

getting expert opinion. The similar decision taken by the

Bombay High Court in respect of the leading the defence

evidence and referring the cheque to the expert opinion.

But here in this case, the complainant marked Ex.P.12

which is not the main document for filing under Section

138 of N.I. Act. But the cheque in question was not

sought by the accused for referring the same to the FSL

for getting expert opinion but the Ex.P.12 which is the

supplementary document produced by the complainant in

support of the cheque for discharging of the loan and that

too in the fag end of the trial, after the arguments

addressed by the complainant before the trial Court, when

the matter was posted for arguments of the defence side,

the trial Court has held the presumption under Section 139

of N.I. Act is available in favour of the complainant for

issuance of check while discharging the loan. In the above

said two cases, in both Bombay High Court as well as the

Hon'ble Supreme Court, where the accused requested to

refer the cheque in question which is based upon the 138

of N.I. Act, wherein in the present case on hand the

Ex.P.12 is only a supplementary document. Even without

the supplementary document, the complainant can

establish his case against the accused and the accused

may rebuttal presumption by way of examining any

witnesses. But here in this case, the accused ha not

chosen to examine any of the members or the vendor of

stamp paper of the Bengaluru Vakeelara Sangha who sold

the document in order to prove the Ex.D7, but, he wants

to refer the Ex.P.12 which is a loan agreement. It is the

settled principles of law that an admitted fact need not be

proved as per Section 58 of the Indian Evidence Act. Once

the document is denied by the accused or defendant, it is

the duty of the complainant to prove the document in

accordance with the law as per the Indian Evidence Act by

examining any of the witness to the document or himself

as a witness to the execution of the documents. Such

being the case, merely, the accused denied the Ex.P.12,

that itself is not an issue in question before the Magistrate.

The issue question is whether the cheque issued by the

accused for discharging the liability or not. Therefore,

considering the same, the trial Court has rightly held that

the issuance of cheque-Ex.P.1 is not disputed by the

accused and also the signature. Such being the case, the

question of referring the Ex.P.12 which is only a

supplementary document need not be referred for getting

expert opinion for the purpose of rebutting the evidence of

the complainant. In fact, the complainant has to prove

that this cheque was issued to discharge of the liability of

loan. Such being the case, in the fag end of the trial, after

the arguments of the complainant, referring the Ex.P.12 is

not a crucial document other than the cheque. Such being

the case, the question of referring the Ex.P.12-loan

agreement to the FSL does not arise. Therefore, the

application filed by the learned counsel for accused-

petitioner does not survive for consideration and the trial

Court has rightly rejected the application for sending the

same to the expert opinion. Therefore, the petition is

devoid of merits.

7. Accordingly, the petition is dismissed.

Sd/-

JUDGE

GBB