Madhya Pradesh High Court
M/S Poshak vs Rajkumar Balwani on 8 January, 2025
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
NEUTRAL CITATION NO. 2025:MPHC-JBP:791
1 MCRC-40804-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 8 th OF JANUARY, 2025
MISC. CRIMINAL CASE No. 40804 of 2023
M/S POSHAK
Versus
RAJKUMAR BALWANI
Appearance:
Shri Manish Datt - Senior Advocate with Shri N.P. Verma - Advocate for
applicant.
Shri Qasim Ali - Advocate for respondent.
ORDER
By way of filing this petition under Section 482 of the Cr.P.C. the
applicant is challenging the order dated 26.08.2023 passed by the Judicial
Magistrate First Class, Bhopal in Case No.RCT/2507282/2016.
2. Learned senior counsel for the applicant contends that the applicant
is being prosecuted on the strength of a complaint filed under Section 138 of
the Negotiable Instruments Act. As per the contents of the complaint, it was
alleged by the respondent/complainant that the present applicant had
borrowed a loan for a sum of Rs.15 Lakh for his needs and the said amount
of loan so extended by the complainant was sought to be repaid by handing
over the cheque in question of Rs.15 Lakh. The said cheque was dishonored
upon its submission with the bank and then the complaint was filed.
3. Learned senior counsel for the applicant contends that in the present
case, the applicant way back in 2014 had approached the Police Station
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Shahjahanabad, District Bhopal by way of an intimation dated 28.10.2014
that a bag containing cheque and other papers was misplaced on 27.10.2014
at around 2:30 PM in the noon near Sindhi Committee, Prabhu Nagar, Idgah
Hills, Bhopal. The cheque in question was one of the cheque in the said bag
and the said cheque was misused by the complainant by filing the complaint.
It is also contended by the counsel that the news regarding the bag which was
misplaced was also published in the newspaper. Later on, at the stage of
defence examination, an application under Section 45 of the Evidence Act
was filed with a prayer to ascertain the handwriting as well as signature on
the cheque by an Handwriting Expert and an application under Section 91 of
the Cr.P.C. was also filed for production of the original copy of the
complaint moved before the Police Station Shahjahanabad, District Bhopal.
Both the applications were turned down.
4. It is contended by the counsel that the impugned order passed by the
Court is unsustainable as the Court was required to appreciate that the proper
stage for making a request for expert opinion when the proceedings before
the Court reaches at the stage of Section 243 of Cr.P.C. It is contended by the
senior counsel that an identical issue was dealt with by the Apex Court in the
case of Kalyani Bhaskar (MRS.) vs. M.S. Sampoornam (MRS.) [(2007) 2
SCC 258] and the Apex Court, while dealing with Section 243(2) of Cr.P.C.,
concluded that when the accused enters upon his defence, he has right to
make an application for the opinion of Handwriting Expert and Magistrate is
required to accede to such request unless he decides that the same is
vexatious or has been filed in order to unnecessarily prolong the
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proceedings. In the present case, the application was moved at an appropriate
stage and the same was neither vexatious nor was moved with any object to
delay the proceedings.
5. Learned counsel for the applicant has placed reliance on the
decision of Apex Court in the case of T. Nagappa vs. Y.R. Muralidhar
[(2008) 5 SCC 633].
6. Learned counsel for the applicant has also placed reliance on the
decisions of this Court in the cases of Keshav Singh Kushwah vs. Munnalal
Sharma (M.Cr.C. No.32258/2019) , Shrimati Big Saree Mall Through its
Partners vs. Peerumal Raju (M.Cr.C. No.26021/2017) and Abhishek vs.
Ramesh [2012 (2) MPLJ 472].
7. Per contra, learned counsel for the respondent submits that the
present petition is liable to be dismissed as the present case is merely a
device to unnecessarily prolong the proceedings. It is contended by the
counsel that the alleged stand so taken by the present applicant regarding the
theft of the bag in 2014 is grossly misconceived. It is contended by the
counsel that there is testimony of the complainant on record which prima
facie contains the suggestion given by the present applicant to the
complainant in paragraph 15 thereof. It is contended by the counsel that the
Apex Court in the case of L.C. Goyal vs. Suresh Joshi (Civil Appeal
No.2271/1998) has clearly held that when the cheque is dishonored on
account of insufficiency of funds, the opinion of a Handwriting Expert
regarding the contents of the cheque is not required. It is contended by the
counsel that the cheque in question was dishonored on account of
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insufficient fund and not on account of any difference in the signature of the
account holder. Hence, counsel submits that the petition deserves to be
dismissed.
8. Having heard the submissions and perusal of the record it reflects
that the applicant is trying to allege that the cheque in question was not
issued to the complainant and the cheque in question was infact misplaced
and to support the said contention, the reliance was placed by the present
applicant on the report dated 28.10.2014 lodged with the Police Station
Shahjahanabad, District Bhopal as well as newspaper publication which is at
page no.17 of the present case. If the said stand of the present applicant is
taken into consideration while perusing the contents of paragraph 15 of the
testimony of the complainant, it would reveal that a total contrary suggestion
was given to the complainant during the cross-examination.
9. Paragraph 15 of the testimony of the complainant is reproduced
herein:-
यह सह है क म कोहे फजा िसंधी पंचायत म अ य रहा हू,ं
वतमान म म अ य नह ं हू ं सलाहकार अव य हू।ं म िसंधी
से ल पंचायत म कसी पद पर पद थ नह ं रहा हू ं ना ह
वतमान म कसी पद पर पद थ हू।ं म आज नह ं बता सकता
क वष 2017 म िसंधी से ल पंचायत म कौन अ य थे। म
आज यह भी नह ं बता सकता क दनांक 27/10/2014 को
िसंधी से ल पंचायत म कौन अ य थे। यह कहना गलत है
क म दनांक 27/10/2014 को िसंधी से ल पंचायत क भू
नगर, ईदगाह ह स, भोपाल पर हुई बैठक / मी टं ग म
शािमल हुआ था। यह कहना गलत है क िसंधी से ल
पंचायत के त कालीन अ य से मेरे काफ मधुर संबंध रहे
ह। यह कहना गलत है क िसंधी से ल पंचायत के अ य
महोदय ने मेर दो ती के कारण मुझे आरोपी राम साधवानी
और उसके भाईय के कुछ कोरे चैक दये थे और मने अ य
महोदय के कहने पर ह उ कोरे चैक का द ु पयोग कर फज
तौर पर रािश भरकर व अ य इ ाज कर फज ह ता र कर
NEUTRAL CITATION NO. 2025:MPHC-JBP:791
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यह झूठा दावा लगाया है ।
10. A perusal of the aforesaid suggestion so given to the complainant
regarding handing over of cheque to the President of Kohefiza Sindhi
Panchayat and later on misuse of the same by making incorrect entry in the
same. This suggestion which finds mention in paragraph 15 of the testimony
of the complainant given by the present applicant is itself contrary to the
stand taken in application filed under Section 45 of Evidence Act.
11. It is further important to take note of the fact that in the present
case, the applicant has not brought on record the testimony of the bank
official to establish that the bank official was put to a specific question that
whether he had not verified the signature before returning of the cheque on
account of insufficient fund. The applicant also has not produced evidence of
any of the bank official of the bank with which the account was being
maintained by the present applicant i.e. State Bank of India, Sultania Road,
Bhopal.
12. The Apex Court in the Kalyani Bhaskar (supra) case, had taken
into consideration the eventuality where the Banker was subjected to a
question regarding verification of signature before returning the cheque and
the Banker in that case had clearly stated that he had not verified the
signature. In the present case, no such eventuality exists. Therefore,
apparently the application filed by the present applicant under Section 45 of
the Evidence Act was devoid of merit and the trial Court rightly observed
that the cheque was dishonored on account of insufficient fund and not on
account of any difference in signature. The trial Court further observed that
there was no defence of the present applicant that on the date of dishonor of
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the cheque there was sufficient amount in his bank account. The trial Court
accordingly proceeded to reject the application. The order passed by the trial
Court in the considered view of this Court does not suffer from any
perversity or infirmity. The application filed under Section 45 of the
Evidence Act was apparently vexatious and was filed to unnecessarily
prolong the proceedings particularly in view of the cross-examination of the
complainant in paragraph 15 of his testimony.
13. The reliance as placed by the counsel for the applicant in the
aforesaid decisions are misplaced inasmuch as, the judgments are
distinguishable on facts.
14. Resultantly, the petition filed under Section 482 of Cr.P.C. stands
dismissed.
(MANINDER S. BHATTI)
JUDGE
mn
