Orissa High Court
Rama Ch. Sahoo vs Krushna Chandra Dhar on 30 November, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.3512 of 2019
Rama Ch. Sahoo .... Petitioner
Mr. S. Udgata, Advocate
-Versus-
Krushna Chandra Dhar .... Opposite Party
Mr. J.M. Pattnaik for O.P.
CORAM:
JUSTICE R.K. PATTANAK
Order No. ORDER
30.11.2021
3. 1. Application under Section 482 Cr.P.C. is filed by the
petitioner with a relief to quash the impugned order dated
22.11.2019 passed in ICC Case No.114 of 2018 by the learned
J.M.F.C,, Talcher on the ground inter alia that it is untenable in law
and thus, liable to be interfered with in exercise of the Court's
inherent jurisdiction.
2. According to the petitioner, the opposite party has
filed the complaint against him alleging commission of an offence
punishable under Section 138 of the Negotiable Instrument Act by
claiming that he had advanced a friendly loan of Rs.9,20,000/- on
19.08.2017 and in that connection, a cheque was issued by him
which could not be honoured and encashed due to insufficiency of
fund. It is contended by the petitioner that the learned court below
did not examine the source of income of opposite party, whether,
he had the capacity to advance such a huge amount as loan and
not only that, it could not be established as to if the signature on
the cheque belonged to him or not without examining any officer
Page 1 of 5
// 2 //
of the Bank and under such circumstances, in order to discharge the
reverse presumption, an application was moved for sending his
specimen signatures to tally the signature found on the cheque in
question for its examination by an expert and opinion but the same
was rejected by the impugned order dated 22.11.2019.
3. None appears for the petitioner. However, the
opposite party contended that the learned court below did not
commit any wrong or error while rejecting the request of the
petitioner. It is further contended that the petitioner filed the
application for sending the cheque with specimen signature for
scientific examination and opinion at a belated stage with an
intention to delay disposal of the complaint, inasmuch as, there
was no necessity for the same.
4. As per the opposite party, the learned court below
rightly appreciated the need of any opinion from a hand writing
expert, in so far as the present case is concerned, with reference to
Section 45 of the Indian Evidence Act and therefore, the impugned
order dated 22.11.2019 is absolutely justified. The opposite party
supported the reason provided by the learned court below, while
rejecting the application of the petitioner.
5. The learned court below did not find favour with
the argument of the petitioner. It is the conclusion of the learned
court below that the evidence of the hand writing expert is not
normally sufficient for accepting a defence which may further need
corroboration. The court did not accede to the request of the
petitioner for having not placed any material endorsing his original
signature. In fact, the learned court below did not find any
evidence led from the side of the petitioner, while seeking
examination of the signature appearing on the cheque by an
expert. It is made to suggest from the impugned order dated
Page 2 of 5
// 3 //
22.11.2019
that the petitioner did adduce no evidence in defence
before seeking such examination of cheque by an expert.
6. In the instant case, the learned counsel for the
opposite party cited a judgment of the Supreme Court in the case
of Rajeshbhai Muljibhai Patel and others Vrs. State of Gujarat and
another decided on 10th February 2020 in Criminal Appeal
Nos.251-252 of 2020 besides an order dated 04.11.2019 passed in
SLP (Crl.) Nos.9836 of 2019 in the case of Oriental Bank of
Commerce Vrs. Prabodh Kumar Tewari and another while
contending that a criminal proceeding cannot be quashed for the
reasons asked for, inasmuch as, the petitioner is required to
discharge the onus and statutory presumption by adducing rebuttal
evidence. It is also contended that opinion of handwriting expert is
although a relevant piece of evidence, it is not conclusive in nature
and in so far as the present case is concerned, the same could not
have been acceded to for the reason that at no point of time, any
such objection was raised by the petitioner on the signature found
on the cheque.
7. It is made to suggest that at the fag end of the
proceeding in I.C.C. No.114 of 2018, the petitioner moved the
learned court below to send his specimen signatures to the finger
print expert to tally the same with the one appearing on the
cheque. The petitioner challenged the claim of the opposite party
on number of grounds, such as, on the source of income, absence
of signature on the notice issued under Section 138 of the N.I. Act
etc. besides a request for sending the cheque carrying his signature
along with specimen signatures for the purpose of examination by
an expert. In the considered view of the Court, the other grounds
which have been raised questioning the genuineness of the claim of
opposite party regarding source of income etc. it can be decided by
// 4 //
the learned court below on the basis of evidence led by the parties.
It is not revealed from the record, if the petitioner ever questioned
his signature on the cheque as not that of his own. Rather, the
opposite party apprised the Court that it was a cheque, which was
issued by the petitioner carrying his signature thereon, which was
not objected to by the Banker, which returned the same only with
an endorsement of insufficiency of fund. According to the Court, if
the signature on the cheque claimed not to be that of the drawer
and it is from the very inception, under such circumstances,
depending on the nature of evidence received, a court may
consider transmitting the cheque along with specimen signatures for
the purpose of examination and scientific opinion. The court may
also compare the signatures to tally with the signature appearing
on the cheque. In the present case, it does not appear that the
petitioner has really questioned the genuineness of the cheque vis-
a-vis his signature appearing thereon. Rather, the opposite party
claimed that the petitioner never ever disputed or denied his
signature on the cheque, inasmuch as, the evidence on record to be
completely silent in respect thereof. The drawer of the cheque is to
dispute about the signature appearing on the cheque as of his own
from the very beginning. If it is so and evidence is brought on
record and ultimately, the court finds that either a comparison by
itself is required, it can do so, or on being moved by the drawer by
having regard to the nature of evidence on record may even refer
or transmit the cheque in question along with specimen signatures
for being examined by an expert. In absence of any such material
shown from the side of the petitioner, it would not be justified to
direct sending the cheque and the specimen signatures for the
purpose of scientific comparison. At least, a foundation should be
laid down and evidence adduced, while demanding examination of
the cheque by an expert. It is no doubt correct to suggest that
opinion of an expert is relevant in view of Section 45 of the Indian
// 5 //
Evidence Act and a piece of evidence admissible but not always
conclusive.
8. Having regard to the above, the Court is of the
considered view that no material has been brought on record to
suggest that the petitioner really ever challenged the genuineness of
the cheque carrying his signature and in fact, on that ground,
opposed the claim of the opposite party from the very inception. It
is reiterated that unless foundational facts and evidence are
submitted, there cannot be any necessity felt to direct scientific
examination of signature of cheque and its comparison with
specimen signatures, as is presently claimed by the petitioner. In
other words, the Court does not find any reason to interfere in the
impugned order dated 22.11.2019.
9. Hence, it is ordered.
10. In the result, the application under Section 482
Cr.P.C. filed by the petitioner stands dismissed. As a necessary
corollary, the impugned order dated 22.11.2019 passed in I.C.C.
Case No.114 of 2018 by the learned J.M.F.C., Talcher is hereby
affirmed, for the reasons discussed as aforesaid.
(R.K. Pattanaik)
Judge
