M/S Shiv Pharmaceuticals vs M/S Raptakos Brett & Company Ltd. ...
2025 Latest Caselaw 3943 Ori

Orissa High Court

M/S Shiv Pharmaceuticals vs M/S Raptakos Brett & Company Ltd. ... on 13 February, 2025

          THE HIGH COURT OF ORISSA AT CUTTACK

                       CRLMC No. 1719 of 2024

(In the matter of an application under Sections 482 of the Criminal
Procedure Code, 1973)


M/s Shiv Pharmaceuticals                       .......        Petitioner

                                  -Versus-

M/s Raptakos Brett & Company Ltd.                  .......       Opp. Party


      For the petitioner : Mr. Dipti Ranjan Mohapatra, Advocate,

      For the opp. Party : Mr. Sanjay Kumar Das, Advocate


CORAM:

    THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA


 Date of Hearing: 17.09.2024       ::   Date of Judgment: 13.02.2025

S.S. Mishra, J. The petitioner by invoking the jurisdiction of this Court

under Section 482 Cr.P.C has assailed the order dated 30.01.2024 passed

by the learned S.D.J.M. (Sadar), Cuttack in I.C.C Case No 81 of 2020,

whereby his application for sending the alleged cheque to handwriting
 expert for determination of the age of the contents and the signature

therein has been turned down.

2.       Heard, Mr. Dipti Ranjan Mohapatra, learned Counsel for the

petitioner and Mr. Sanjay Kumar Das, learned Counsel for the Opposite

party.

3.       The brief facts of the case as unfolded from the record is that, the

complainant is a registered company which have been incorporated under

The Companies Act, 1913 having its registered office at 253, Annie

Besant Road, P.O. Worli Colony in the city of Mumbai-400030 and also

maintains a Branch Office in the State of Odisha at Bhanapur, District of

Cuttack. The Company is a manufacturer of Pharmaceutical Dietary

Specialist and Nutricentrical products which are being sold by its

distributors at different parts of India. The Accused under his

proprietorship started a business under the name and style of "M/s Shiv

Traders" which was subsequently changed as M/s Shiv Pharmaceuticals.

The Complainant-Company had authorized the accused to distribute

company's product covering the district of Kendrapara. The accused dealt

with the complainant's company products with utmost satisfactory


                                                              Page 2 of 18
 manner spanning the period between 18.09.2019 to 30.09.2019. The

accused had supplied with huge stock of Medicines, "Lactodex" and Milk

products meant for feeding the infants, under 5 nos. of invoices bearing

No. (i)9814055066, (ii) 9814055186, (iii) 9814055187, (iv) 9814055390

and (v) 9814055391 for a total value of Rs.11,81,773/- (Rupees Eleven

Lakhs Eighty One Thousand Seven Hundred Seventy Three) only. All the

invoices as aforesaid have been supplied from the company's branch

office depot situated at Bhanapur to the accused and have been duly

acknowledged (received) by the accused. After receipt of the

consignment, the accused, to clear the liability handed over a Cheque

bearing No. 016121 dated 30.12.2019 for an amount of Rs. 11,81,773/-

from his account in Oriental Bank of Commerce at Tinimuhani Branch,

Kendrapara in favour of the Complainant's Company. The cheque on

being presented on 30.12.2019 by the Complainant-Company at HDFC

Bank at its Nandisahi, Cuttack Town Branch, was returned unpaid on the

ground "FUNDS INSUFFCIENT" by the Bank on 31.12.2019 and was

received by the Complainant-Company on 03.01.2020. After receipt of

such dishonoured Cheque, the Complainant-Company issued necessary


                                                         Page 3 of 18
 notice U/s 138 (b) of N.I. Act on 03.01.2020 and dispatched the same on

04.01.2020 by Regd. Post with A.D. to the proper address of the accused

and the said notice was duly received on the accused on 10.01.2020 as

per the Tracking Report of the Postal Department. The accused failed to

comply with the demand as made in the notice by the Complainant-

Company and the complainant-company became fully satisfied that the

accused is in a mood to cheat the Complainant-Company and wants to

deprive it from its legal entitlement. The Complainant-Company

authorized its Branch Manager of Cuttack Branch at Bhanapur, namely,

Mr. Jayadev Sethy to file this complaint before the appropriate court to

prosecute the accused for alleged commission of offence under section

138 of the N.I. Act.

4.    Mr. Mohapatra, learned counsel for the petitioner submits that

during cross examination of the complainant-opposite party, he has stated

that the details of the cheque were entered by the petitioner, as the cheque

was presented to the complainant being duly filled in. Further, when it

was suggested on behalf of the accused to the complainant during his

cross examination that the cheque was old and the amount details and


                                                            Page 4 of 18
 date on the cheque were to be filled in afresh, the complainant replied

that "he cannot say whether the ink of the signature and ink used to write

the amount and date were different and, as such, he has not filed any

signed documents relating to settlement of the accounts between his

company and the petitioner".

      Learned counsel for the petitioner further submitted that during

cross examination the petitioner, he has raised his objection with regard

to issuance of cheque towards any liability and it was his specific

objection before the court that a blank signed cheque was handed over to

the complainant towards security, which has been misused by the

complainant by fabricating the contents on the cheques by using different

ink afresh on the old singed blank cheque. He further submitted that the

entire case of the opposite party is based on the invoices in order to

establish the debt on the petitioner. But the petitioner has already raised

objection with regard to the genuineness of those invoices before the

learned trial court, to which the complainant could not offer proper

explanation. Therefore, admittedly there was no legally receivable debt

exit, hence question of issuance of cheque in subject does not arise. The


                                                            Page 5 of 18
 said fact can only be established through the exhibits, namely, cheque,

invoices etc. Therefore, all those exhibits be examined by a handwriting

expert or by SFSL, Bhubaneswar. He submits that the learned trial court

has failed to appreciate the fact that as per the tax invoices supplied by

the complainant the goods were supplied through Reliance Transport

Corporation in different dates, but perusal of the demand notice dated

03.01.2020 makes it crystal clear that the goods were supplied through

M/s National Transport Company. Thereby, supply of goods by the

opposite party firm is also doubtful. But the learned trial court has failed

to appreciate the true perspective of the matter and passed the impugned

order in depriving the petitioner for an opportunity to rebut the

presumption drawn against him. Accordingly, the impugned order has

been passed depriving the petitioner for a fair and impartial trial.

      In support of his argument, learned counsel for the petitioner has

relied upon the decision of the Hon'ble Supreme Court in the case of

Kalyani Baskar (Mrs) Vrs. M.S. Mampoornam (Mrs.) reported in (2007)

2 SCC 258, relevant paragraphs of which are extracted hereunder:-




                                                              Page 6 of 18
 "Section 243 (2) is clear that a Magistrate holding an
inquiry under the Cr.P.C. in respect of an offence triable
by him does not exceed his powers under Section 243(2)
if, in the interest of justice, he directs to send the
document for enabling the same to be compared by a
hand-writing expert because even in adopting this course,
the purpose is to enable the Magistrate to compare the
disputed signature or writing with the admitted writing or
signature of the accused and to reach his own conclusion
with the assistance of the expert. The appellant is entitled
to rebut the case of the respondent and if the document

viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the hand-writing expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. 'Fair trial' includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and courts should be jealous in seeing that there is no breach of them. We have not been able to appreciate the view of the learned Judge of the High Court that the petitioner has filed application under Section 243 Cr.P.C. without naming any person as witness or anything to be summoned, which are to be sent for handwriting expert for examination. As noticed above, Section 243(2) Cr.P.C. refers to a stage when the prosecution closes its evidence

after examining the witnesses and the accused has entered upon his defence. The appellant in this case requests for sending the cheque, in question, for the opinion of the hand-writing expert after the respondent has closed her evidence, the Magistrate should have granted such a request unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. In the circumstances, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable."

Similarly, on the issue of examination of the age and ink available

on the body of the cheque in question, learned counsel for the petitioner

has relied upon the judgment of the High Court of Karnataka in the case

of Gavisiddeshwara Hiremath Vs. Sanjeev Basavarajappa Karadakal,

reported in 2019 SCC Online Kar 1842, wherein paragraphs-10 and 11

read as under:-

"10. Section 73 of the Indian Evidence Act, 1872 relates to comparison of signature, writing or seal with others admitted or proved. However, it is a power vested with the Court of law to consider and decide the matter by sending the disputed cheque for experts' opinion or not. It is relevant to refer the judgment of Patna High Court in the case of Khushboo Sharivastava, D/o. Sri Mohan Prasad Shrivastava vs. the Union of India (UOI) Through the Secretary, Human Resources Department, Govt. of India and others reported in 2009 (1) PLJR 867.

Ultimately the Judge will be an expert apart from other experts or an expert of the expert or Court is an expert of experts in concluding the matter by taking the decision after considering the entire facts of the case, as keeping in view the scope and object of Section 73 of the Indian Evidence Act, 1872"

11. In the instant petition, the petitioner is arraigned as accused in C.C. No.709/2014, wherein he is facing up the trial for the offence punishable under Section 138 of the N.I. Act. However, the respondent-complainant having a responsibility to prove the guilt of the accused by producing the cogent and corroborative evidence in order to secure the conviction whatever the offence has been faced by the accused and also put on trial.

But Sections 45 and 73 of the Act, 1872, it is referred relating to the opinion report secured by the competent person otherwise to see an expert relating to the disputed cheque at Ex.P-1 subjected for examination and to give the opinion report regarding the age of ink. But the said application came to be rejected by the Court below in C.C. No.709/2014 and the same has been challenged under this petition by urging the various grounds. The same has been referred supra. Mere because technically the provision has been quoted by the applicant - accused before the Court below seeking to refer the disputed cheque Ex.P-1 relating to the age of ink, signature and writing found on the cheque, it cannot be a ground to reject the application filed by the applicant-accused, who is arraigned as petitioner herein, but the relevant provision under Sections 293(1) and 293(1)(4)(c) of Cr.P.C. regarding subjecting the disputed cheque for examination or analysis and securing the report under this Court, it may be used as evidence in any enquiry,

trial or other proceedings. However, the case in C.C.No.709/2014, the accused is required to facing up of a trial for the offences punishable under Section 138 of the N.I. Act. Therefore, the disputed cheque at Ex.P-1, relating to the age of ink, signature and contents found on the said cheque, is required to be examined by the handwriting expert and a report to be secured by the Forensic Science Laboratory. Therefore, it is said that the petition requires to be considered keeping in view the aforesaid relevant provision of Section 293 of Cr.P.C. Based upon the relevant provision of Sections 293(1) and 293(4)(c) of Cr.P.C., having an authority to examine the disputed cheque relating to the age of ink and also signature, contents of writing found on the cheque, which got marked as Ex.P1 in the aforesaid case be adjudicated between the complainant and the accused."

5. Learned counsel for the petitioner also draws this Court's attention

towards the fact that the complaint stands on the legs of the invoices in

order to establish the legally recoverable debt. The petitioner raised

objection with regard to the genuineness of those invoices putting

questions to the complainant/opposite party to which he failed to answer.

As such, an application was filed by the petitioner to send the exhibits

invoices for examination by the handwriting expert or an expert of SFSL,

Bhubaneswar, which has been rejected by the learned SDJM (Sadar),

Cuttack. Hence, the grievance.

6. On the other hand, Mr. Das, learned counsel for the opposite party-

Complainant vehemently objected the prayer of the petitioner to send the

cheques to handwriting expert. He has submitted that the learned court

below has rightly passed the order dated 30.01.2024 rejecting the

application, as the petitioner in order to discharge his debt had given the

cheque to the opposite party-complainant. He also draws this Court's

attention to the fact that the accused-petitioner has not disputed his

signature on cheque issued by him to the opposite party-complainant.

7. Mr. Das, learned counsel for the opposite party further submitted

that on the mere allegation that the inks are different in the cheque,

therefore, it should be sent to the handwriting expert is not tenable under

law. Once the signature in the cheque is admitted by the accused,

presumption under section 139 of the N.I. Act shall operate against him.

He therefore, vehemently opposed the prayer made by the petitioner for

sending the exhibits to the handwriting experts. To substantiate his

argument, he has relied upon the judgment of the Madras High Court in

the case of S. Gopal v. D. Balachandran, reported in

MANU/TN/0119/2008. He has relied upon the following passages of the

judgment:

"7. This court in RAJENDRAN v. USHARANI (2001-LW (Crl.)

319) has observed that no law prescribes that in case of any negotiable instrument, the entire body of the instrument shall be written only by the marker or drawer of the instrument. Once the execution is admitted, it shall be taken that the cheque was issued by the accused in favour of the complainant towards the discharge of the liability even in a case where the cheque was filled up by some other person.

8. It is to be noted that there is no reference to section 20 of the Negotiable Instruments Act in the aforesaid authority. A general proposition has been made to the effect that there is a presumption, in case a signed cheque is delivered to the payee, that the cheque so issued by the drawer in favour of the payee is only towards the discharge of his subsisting liability.

9. The aforesaid authority does not run counter to the provision under section 20 of the Negotiable Instruments Act. As rightly observed therein, there is no law which prescribes that a cheque shall be filled up by the drawer himself. If such proposition is accepted, no unlettered person, who knows only to sign his name, can ever be a drawer of a cheque. Further, a person who is physically incapacitated to fill up the cheque cannot also draw a cheque and negotiate it. Of course, as far as the other negotiable instruments viz., pronotes and bills of exchange, there is a clear mandate under section 20 of the Negotiable Instruments Act to the effect that such an instrument can be negotiated by the maker thereof by simply signing and delivering the same to the holder in due course giving thereby

ample authority to the latter to fill up the content of the instrument as intended by the maker thereof.

10. Even in case of a cheque, as there is no clear provision in the Negotiable Instruments Act, in the light of the above discussion, the court finds that if a drawer of a cheque gives authority to the payee or holder in due course or a stranger for that matter to fill up the cheque signed by him, such an instrument also is valid in the eye of law. There is no bar for the drawer of a cheque to give authority to a third person to fill up the cheque signed by him for the purpose of negotiating the same."

Mr. Das, has also drawn my attention to another judgment of Madras

High Court reported in MANU/TN/0919/2000, Rajendran v. Usharanai.

Paragraph-6 of the said judgment is relevant to be reproduced:-

"Even assuming that the cheque was filled up by some other person, once execution is admitted, it shall be taken that the cheque was issued by the accused in favour of the complainant towards the discharge of the liability. No law provides that in case of any negotiable instrument, entire body has to be written by maker or drawer only. What is material is signature of drawer of maker and not the body writing. Hence, question of body writing has no significance. This has been laid down by the Gujarat High Court in Satish Jayantilal Shah v. Pankaj Mashuwala, 1996 Cri.L.J.3099."

Similarly, Mr. Das has cited the judgments of the Punjab and Haryana

High Court and Gujarat High Court. Paragraph-8 of the judgment of

Gujarat High Court reported in 1996 CRI.L.J. 3099, Satish Jayantilal

Shah v. Pankaj Mashuwala and another has little relevancy to the

present case, which reads thus:

"8. While admitting issuance of disputed cheques, Mr. Gupta, the learned advocate for the applicant/accused vehemently argues that the body of cheques is not written by the drawer and that the cheque were not voluntarily given in discharge of legal debt or liability and thus provisions of Section 138 of the Negotiable Instruments Act are not applicable. On this point, he relies upon decision reported in the case of T.N. Khambati v. M/s Vinayak Enterprises, 1995 Cri LJ 560 (Andh. Prad). Mr. K.P. Raval, learned A.P.P. appearing for the State has invited my attention to cross examination on behalf of the applicant and statement of accused under Section 313 of Criminal Procedure Code wherein issuance of cheque has been clearly admitted. In my view, this question being purely a question of facts, cannot be raised and appreciated while exercising revisional jurisdiction more particularly when no such contention was ever raised before the trial Court. The only defence advanced before the trial court is that the cheques were given to the complainant as advance payment towards the goods to be delivered in future. Thus, the applicant clearly admitted execution; hence this contention needs no consideration and be rejected. Apart from this fact, no law provides that in case of any negotiable instrument entire body has to be written by maker drawer only. What is material is signature of drawer or maker and not the body writing hence question of body writing has no significance."

By relying upon the aforementioned judgments, Mr. Das, learned counsel

for the opposite party submitted that the tactic employed by the petitioner

is only aimed at procrastinating the proceeding initiated by him under

Section 138 of the N.I. Act. He submitted that the statute provides for

disposal of this kind of cases within a period of six months. He has relied

upon Section 143 of the N.I. Act.

8. I have given a careful consideration to the facts scenario of the

present case and also analyzed the judgments cited by both the counsels

at the Bar.

9. The court below by impugned order dated 30.01.2024 rejected the

application of the petitioner, inter alia, observing as under:-

"Heard both sides. Perused the case record and all its connecting documents. Upon perusal of the same, it is seen that the complainant has been examined, cross- examined and discharged. During such cross- examination, the accused has not disputed his signature on the cheque. Moreover, at the time of recording of accused statement under Section 313 Cr.P.C., the accused has admitted that he had signed the said cheque. The record is currently posted for evidence from the side of the accused (defence evidence), but the accused has not yet adduced any evidence to show that any of the documents exhibited are manufactured or fake. Hence, this Court feels that this is not the proper stage for such a petition. Additionally, this is a case of

2020. More than 3 years have already elapsed. Allowing of such petition at this stage would amount to further unnecessary delay. Hence, there is no proper justification for the petition and hence, at this stage, this Court is not inclined to allow the same. Thus, having regard to the above discussion, the petition stands rejected. Put up on 07.03.2024 for defence evidence."

10. Reading of the above observations made by the trial court makes it

abundantly clear that the petitioner has indeed not disputed his signature

contained in the cheque. Therefore, the trial court has rightly rejected the

prayer for sending the cheque and other exhibits to handwriting experts.

The trial court has also taken into consideration the delayed motion of the

petitioner to send the exhibits to the handwriting experts. Although the

judgments in subject cited by both the parties at the Bar are conflicting

views on the subject but the fact remains that under the statutory

command every case under Section 138 of the N.I. Act needs to be

concluded within a stipulated time framed as prescribed under Section

143 of the N.I. Act. Keeping that in mind the conduct of the accused has

to be taken into consideration as to whether the accused has taken steps at

the right time to assert his right or his attempt is only directed towards

delaying the proceeding. In the instant case, the complaint was filed on

24.02.2020 and about five years have gone by. However, the matter is

still pending for conclusion of the trial. In that scenario, the trial court's

order rejecting the application of the petitioner appears to be

unquestionable. At the same time, right of an accused to defend in the

criminal case is indefeasible. In the case of present nature when

presumption is operating against the petitioner, which is rebuttable in

nature, the right of the petitioner-accused to lead evidence in his rebuttal

is also inalienable right. Therefore, the petitioner being accused has right

to adduce all evidence under his command to disprove the case of the

complainant-opposite party.

11. Taking into consideration the case into its entirety, I am of the

considered view that the petitioner should get at least an opportunity to

lead his evidence in rebuttal. Therefore, it is open for the petitioner-

accused to obtain report from a private handwriting expert and place it on

record, if so advised. It is also open for the petitioner to lead any other

evidence to prove his case on his defence, but that should not be at the

cost of delaying the proceeding inordinately.

12. In view of the aforementioned discussions, although I am not

inclined to interfere with the impugned order at this belated stage,

however, it is open for the petitioner to lead his defence evidence in that

regard. The trial court shall afford the petitioner at least one opportunity

to examine the witnesses or place on record any scientific evidence to

disprove the case of the complainant.

13. With this observation, the CRLMC is disposed of.

(S.S. Mishra) Judge

The High Court of Orissa, Cuttack.

Dated the 13th February, 2025/Ashok

Signed by: ASHOK KUMAR JAGADEB

Location: High Court of Orissa, Cuttack