Dilar Mohallick vs Laxmidhar Maharana And Another
2023 Latest Caselaw 2605 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK

                    CRLMC No.1281 of 2021

  Dilar Mohallick                      ....            Petitioner
                           Mr. Subrat Kumar Nayak-3, Advocate



                             -Versus-


  Laxmidhar Maharana and Another    ....      Opposite Parties
                      Mr. A.C. Panda, Advocate for O.P. No.1

           CORAM:
           JUSTICE R.K. PATTANAIK

              DATE OF JUDGMENT:31.03.2023

1.

Instant petition under Section 482 Cr.P.C. is filed by the petitioner assailing the impugned order dated 5th April, 2021 passed by the learned Civil Judge-cum-J.M.F.C., Rourkela in connection with 1CC No.249 of 2014, whereby, an application under Section 243(2) of Cr.P.C. moved by him for sending the alleged cheque for examination by a handwriting expert was declined and rejected and finally confirmed by the 1st Additional Sessions Judge, Rourkela in Criminal Revision No.15 of 2021.

2. The opposite party No.1 filed the complaint in 1CC Case No.249 of 2014 under Section 138 of N.I. Act with the allegation that he had given a hand loan to the petitioner on different occasions in two years' time and towards its repayment, a cheque dated 10th March, 2014 for an amount of Rs.4 lac was issued which, however, on being presented for encashment, stood dishonoured due to insufficient fund. The learned court below during trial received evidence from the side of opposite party No.1 and thereafter, recorded the statement of the petitioner under Section 313 Cr.P.C. who then moved said application under Section 243(2) Cr.P.C. read with Section 45 of Indian

Dilar Mohallick Vrs. Laxmidhar Maharana and Another

Evidence Act for sending the cheque in question to forensic laboratory for examination with regard to the signature appearing thereon since it was disputed by him but as earlier mentioned, the same was rejected vide Annexure-3 which was confirmed in Criminal Revision No.15 of 2021 by the learned Sessions Court. The aforesaid orders of the courts below are under challenge on the ground that the alleged cheque should have been allowed to be examined by a handwriting expert since the petitioner disowned his signature therein.

3. Heard Mr. Nayak, learned counsel for the petitioner and Mr. Panda, learned counsel for opposite party No.1 besides learned counsel for the State.

4. Mr. Nayak, learned counsel for the petitioner submits that learned courts below committed error and rejected the request of the petitioner moved in terms Section 243(2) Cr.P.C. on the ground that there was delay. In fact, the learned Sessions court did not entertain the same for the order to be interlocutory in nature. So far as the order of the learned J.M.F.C., Rourkela is concerned, the application under Section 243(2) Cr.P.C. filed by the petitioner was rejected on the ground that the petitioner had no specific plea disputing his signature and furthermore, the objection was raised during his examination under Section 313 Cr.P.C. and it has been advanced at a belated stage purposefully to linger the proceeding. The said order was challenged by way of revision, however as mentioned earlier, the same was disposed of on technical ground. The question is, whether, the petitioner's plea and request for sending the cheque for examination by a handwriting expert should have been allowed by the court of first instance?

5. Mr. Nayak, learned counsel for the petitioner submits that at the right stage of the proceeding such the application under

Dilar Mohallick Vrs. Laxmidhar Maharana and Another

Section 243(2) Cr.P.C. was filed and so far as the defence is concerned, the cheque with the signature of the petitioner was disputed by him and it was confronted to opposite party No.1 during the latter's cross-examination and also denied while being examined under Section 313 Cr.P.C. and therefore, the learned J.M.F.C. could not have rejected it for examination of the cheque by a handwriting expert. While contending so, Mr. Nayak, learned counsel for the petitioner referred to a decision of the Apex Court in the case of T. Nagappa Vrs. Y.R. Muralidhar in Appeal (Crl.) No.707 of 2008 and disposed of on 24th April 2008 with the contention that unless the cheque is sent for scientific examination, the petitioner would be deprived of a fair trial and denial to adduce rebuttal evidence. Mr. Panda, learned counsel for opposite party No.1 on the other hand submits that the petitioner never disputed that the signature save and except the suggestion to the complainant and almost after one and half years from the time to begin defence submitted such an application with an oblique motive and malafide intention to delay the disposal of the proceeding. It is also contended that the cheque in question was dishonored due to insufficiency of fund and not for mismatching of signature. It is further contended that the decision in T.Nagappa (supra) does not apply to the facts and circumstances of the present case. It is further submitted that the signature of the petitioner can as well be verified by the learned court below in view of Section 73 of the Indian Evidence Act by comparing the same with admitted ones unless otherwise if is felt necessary to take assistance of an expert. While advancing such an argument, Mr. Panda, learned counsel for opposite party No.1 placed reliance on a decision of the Madras High Court (Madurai Bench) in Crl. O.P.(MD) Nos.17441 and 11447 of 2017 (P. Pattabiraman Vrs. S.R. Eswar) decided on 25th September, 2019 to contend that unless there is defence taken by the accused at the

Dilar Mohallick Vrs. Laxmidhar Maharana and Another

right point of time disputing the signature on the cheque, it should not be sent for an expert opinion.

6. The deposition of opposite party No.1 examined as P.W.1 is made available to the Court. On a bare perusal of the same, the Court finds that the petitioner confronted opposite party No.1 regarding missing of a cheque leaf comprising of 11 cheques from his work place and thus, he had lodged the FIR which was denied. A copy of the report lodged with the local police on 11th April, 2013 is also on record. According to the petitioner, the cheque leaf was lost or misplaced for which he lodged a report and the cheque which was utilized by opposite party No.1 does not bear his signature. The petitioner also denied to have issued the cheque to opposite party No.1. While being examined under Section 313 Cr.P.C. the petitioner disowned any such liability or debt to discharge. No doubt, there has been a delay in placing the request before the learned court below. Whether from the very inception, the defence of the petitioner was against the liability and disputed the signature of the alleged cheque? The Court is ignorant whether the petitioner submitted any such defence at the beginning. However, it is revealed that the petitioner confronted P.W.1 about the missing of the cheque leaf on 11th April, 2013 and of having lodged a report for the same. The Court is of the view that the petitioner though claimed that the cheque leaf was lost which is to mean that the cheque in question cannot bear his signature is needed to be strengthened by evidence and mere suggestion in that regard disowning the signature would not be sufficient for sending it to an expert for examination. In other words, the petitioner is to lead evidence and placed it on record about the missing of the cheque leaf and also to satisfy that the alleged signature does not belong to him. It can be ensured by evidence for the comparison of the signature with the admitted ones and for the said purpose, the petitioner may request the

Dilar Mohallick Vrs. Laxmidhar Maharana and Another

learned court below which can invoke Section 73 of the Indian Evidence Act. Such exercise is to be exhausted and after receiving evidence from the petitioner and only when, it is found expedient that an expert opinion is necessary, the Court is of the view that the cheque may be sent for scientific examination. Thus, it is concluded that when the petitioner is yet to adduce evidence, request for sending the cheque for expert examination should not be acceded to which may be considered later on and preferably after resorting to Section 73 of the Indian Evidence Act and of course keeping in view the legal position as enunciated in T.Nagappa (supra) and another decision of the Apex Court in Kalyani Bhaskar Vrs, M.S. Sampoornam reported in (2007) 2 SCC

258.

7. Accordingly, it is ordered.

8. With the observation and conclusion as above, the CRLMC stands disposed of.

(R.K. Pattanaik) Judge Uksahoo