Dinesh vs Smt. Gulabbai
2023 Latest Caselaw 12948 MP

                                                                       -1-


                            IN THE               HIGH COURT OF MADHYA PRADESH
                                                       AT I N D O R E
                                                                      BEFORE
                                               HON'BLE SHRI JUSTICE VIVEK RUSIA
                                                       ON THE 9th OF AUGUST, 2023
                                              MISC. CRIMINAL CASE No. 30447 of 2023

                           BETWEEN:-
                           DINESH S/O GOVARDHANDAS AGRAWAL, AGED ABOUT 64 YEARS,
                           OCCUPATION: RETIRED, R/O NANEWADI, DHAR (MADHYA PRADESH)
                                                                                                             .....APPLICANT
                           (SHRI ALAMGEER KHAN, ADVOCATE.)

                           AND
                           SMT. GULABBAI W/O LATE BALARAM HAROD, AGED ABOUT 40 YEARS,
                           OCCUPATION: HOUSEHOLD R/O NAUGAON DHAR (MADHYA PRADESH)
                                                                                                        .....RESPONDENTS
                           (NONE PRESENT FOR THE RESPONDENT.)
                           --------------------------------------------------------------------------------------------------------
                                   This application coming on for orders this day, the court passed the
                           following:

                                                                         ORDER

[1] The applicant / accused has filed the present petition being aggrieved by order dated 04.05.2023 whereby application filed under Section 45 of Evidence Act has been rejected. Before filing this petition, the applicant filed a criminal revision against the impugned order which has been dismissed as not maintainable.

[2] The respondents filed a complaint under Section 138 of Negotiable Instruments Act on 12.01.2017 against this applicant.

Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 10-08-2023 16:13:31

According to him, he gave friendly loan of Rs.2,50,000/- to the applicant on 20.03.2015. In order to return the aforesaid amount, the present petitioner gave a cheque No.15320 dated 15.11.2016. The cheque was deposited for encashment, but it was returned with a note that the Account is closed. Thereafter, the complainant issued a legal notice dated 14.12.2016. Thereafter, a complaint under Section 138 of N.I. Act was filed on 12.01.2017 against the petitioner. [3] The complainant's evidence had been concluded and now the trial is fixed for defence evidence. At this stage, this applicant filed an application under Section 45 of Evidence Act for sending the cheque in question to the handwriting experts for verification of the writing. According to the petitioner, he gave a blank cheque of his signature to the husband of the complainant which he filled the amount and presented for encashment. There was no such transaction between applicant with complaint in terms of money, therefore, question of issuing a cheque to her does not arise.

[5] The complainant filed the reply by submitting that after first appearance in the Court, the applicant did not record his plea to submit a probable defence, he did not send a reply to the legal notice also, therefore, present application is filed with the intention to cause the delay in the proceedings of the complaint in the complaint which is pending since 2017 hence, this petition before this Court. [6] Learned counsel for the applicant has placed reliance on the judgments passed by this Court in the cases of Keshav Singh Kushwah v/s Munnalal (M.Cr.C. No.32258/2019) and Sohanlal Singhal and another v/s Sunil Jain [2015 (1) M.P.L.J.] in which the application

Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 10-08-2023 16:13:31

under Section 45 of the Evidence Act was allowed to give the valuable right of defence to the accused to have a fair trial. It is correct that every accused has right to get a fair trial but under Section 138 of N.I. Act there is a presumption against the accused if the signature in the cheque is not in dispute.

[7] Merely, because the cheque was not filled in the handwriting of the account holder, the cheque does not become invalid. In law there is no such requirement that all the entries in the cheque should be filled by the account holder. The printing or typing of the name and amount is acceptable, the signature of account holder is material. The bank has not returned the cheque on the ground of the mismatch in the writing.

[8] Now, the complainant's evidence has been concluded at this stage the handwriting expert report cannot be called for. Even otherwise, the applicant has not filed copies of cross-examination of the complainant to show that whether she was confronted with the cheque or any suggestion was given about handing over or blank cheque was given to her husband.

[9] In view of the above, no case for interference is made out. Accordingly, present petition is dismissed.

(VIVEK RUSIA) JUDGE Divyansh

Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 10-08-2023 16:13:31