Punjab-Haryana High Court
Jai Maa Bhanbhori Trading Co. And ... vs Mohinder Singh on 6 May, 2024
Neutral Citation No:=2024:PHHC:062614
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CRM-M No.18988 of 2024 2024:PHHC:062614
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
285
CRM-M No.18988 of 2024
Date of Decision: 06.05.2024
JAI MAA BHANBHORI TRADING CO. AND ANOTHER
......Petitioner(s)
Vs
MOHINDER SINGH
....Respondent(s)
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present: Mr. Raghav Sharma, Advocate
for the petitioners.
Mr. Shiv Kumar Rana, Advocate
for the respondent.
****
HARKESH MANUJA, J. (Oral)
[1]. By way of present petition filed under Section 482 Cr.P.C., prayer has
been made for quashing/setting aside of impugned order dated 18.03.2024 passed
by the Judicial Magistrate Ist Class, Kaithal, whereby an application filed at the
instance of the petitioners seeking permission to examine handwriting expert for
the purpose of comparison of the writing on the body of cheque with the signatures
of petitioner No.2 thereupon was declined.
[2]. Having been arrayed as an accused in Complaint No.NACT/96/19
under Section 138 of the Negotiable Instruments Act filed at the instance of
respondent/complainant, petitioner No.2 was summoned and was facing trial.
While defence evidence was going on, petitioners moved an application for
seeking permission to lead evidence by examining handwriting expert so as to
compare the writing on the body of cheque with his signatures thereupon. The
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aforesaid application was opposed at the instance of respondent/complainant. The
Trial Court vide order dated 18.03.2024 dismissed the prayer of the petitioners.
[3]. Impugning the aforesaid, learned counsel for the petitioners while
placing reliance upon decision dated 13.06.2022 passed in CRM-M No.45064 of
2019 titled 'Rajesh Rana vs. Parmod Kumar' submits that once the plea of misuse
of cheque was raised by the accused, he should have been afforded opportunity to
prove the same through handwriting expert and, thus, the application moved at the
instance of the petitioners/accused was required to be allowed.
[4]. On the other hand, the prayer made on behalf of the petitioners has
been vehemently opposed at the instance of learned counsel representing the
respondent/complainant while submitting that the purpose of filing of application
at the instance of petitioners/accused was merely to delay the proceedings before
the Trial Court. He also points out that once the signatures over the cheque in
question were never disputed by the petitioner No.2, the factum of filling up of
cheque with some different hand had no material relevance, hence the impugned
order warrants no interference.
[5]. I have heard learned counsel for the parties and gone through the
paper book. I find substance in the submissions made on behalf of the petitioners.
[6]. In the present case, once a defence has been set up by the
petitioners/accused that the cheque in question was misused at the instance of
respondent/complainant, the same having been filled up with different hand in the
given facts and circumstances, it was essential to get the same compared with the
signature of the petitioners through handwriting expert so as to bring the truth on
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record. In this regard, the aforesaid view finds supports from the observations
made by this Court in Rajesh Rana's case (supra). Relevant paragraph no.13
thereof is reproduced hereunder:-
"A perusal of the judgments in T. Nagappa's case etc.
(supra),would clearly establish that when a contention is raised that
the complainant has misused the cheque by filling up the body of the
same, even in a case,where a presumption can be raised under
Section 118(a) or 139 of the Negotiable Instruments Act, an
opportunity must be granted to the accused for adducing evidence in
rebuttal thereof. As the law places burden on the accused, he must be
given an opportunity to discharge it.
The complainant will invariably not disclose that the body of
the cheque has been filled up by him or at his instance even where the
signatures on the cheque has been accepted by the accused. Without
doubt, the holder of the cheque has the authority to fill the same and
the cheque would be a valid instrument but to start with, the first step
available with an accused to rebut the presumption that the cheque
had been issued for the discharge of a legally enforceable debt is by
examining a handwriting expert to testify that the signatory and the
author of the body of the cheque are different persons. Even if the
difference in writing is established, the accused will still have to rebut
the presumption under the Act, that the cheque is a valid tender and
that he had made the payment to the complainant but despite that fact,
the complainant filled up the cheque and presented the same leading
to it being dishonoured. On the other hand, if the permission to
examine the handwriting expert is not permitted on the ground that
the holder has the authority to fill the body of the cheque, then the
accused cannot even begin to establish his defence that a cheque
issued as security has been filled up by someone other than him and
misused. Thus, it would be unfair to shut out the defence of the
accused at the threshold by not allowing the examination of the
cheque in question by a handwriting expert.".
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[7]. It may also be pointed out here that the Trial Court did not appreciate
the fact that respondent/complainant was duly cross-examined on the plea of
misuse of cheque by the petitioners/accused and, thus examination of handwriting
expert to the aforesaid context was very much essential to prove and establish the
aforesaid plea of misuse. Even otherwise, no serious prejudice is going to be
caused to the respondent/complainant as he would always be at liberty to cross-
examine the handwriting expert.
[8]. In view of aforesaid discussion, the impugned order dated 18.03.2024
passed by the Judicial Magistrate Ist Class, Kaithal is hereby set aside. Normal
consequences to follow.
[9]. Considering the fact that the complaint in the present case pertains to
January 2019 and the same is pending before the Trial Court for the last 05 years,
in such circumstances, the Trial Court is directed to conclude the proceedings in
the complaint, as expeditiously as possible preferably within a period of 04 months
from the date of receipt of certified copy of this order.
[10]. All pending application(s), if any, shall stand disposed of.
(HARKESH MANUJA)
May 06, 2024 JUDGE
Atik
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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