Rewa Shankar Prajapat vs Prakashchand Sharma
2021 Latest Caselaw 17796 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Criminal Misc(Pet.) No. 5027/2021

Rewa Shankar Prajapat S/o Shankar Lal, Aged About 47 Years,

B/c Prajapat, R/o Ahmedabad, Gujrat.

----Petitioner Versus

1. Prakashchand Sharma S/o Shiv Lal, Aged About 57 Years,

Bhatund, Tehsil Bali, Dist. Pali.

2. State Of Rajasthan, Through Pp

----Respondents

For Petitioner(s) : Mr. K.P Raj Singh Deora For Respondent(s) : Mr. AR Chaudhary, PP assisted by Ms. Kamla Gauri Mr. Rakesh Arora

HON'BLE MR. JUSTICE FARJAND ALI Order

26/11/2021

Learned counsel for the petitioner submits that the petitioner

is facing trial for the accusation of committing offence under the

penal provision of Negotiable Instrument Act. During the course of

the trial, the accused petitioner moved an application under

Section 45 of Indian Evidence Act with the averment that the

signatures appended on the cheque in question does not belong to

the petitioner as he never handover the cheque in question to the

complainant after making his signatures. The said application

came to be rejected by the learned Judicial Magistrate, Bali vide

order dated 08.02.2017.

The legality, correctness and propriety of the said order, was

assailed before the learned Additional Sessions Judge, by way of

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filing Revision Petition, but the same has also been dismissed vide

order dated 13.08.2021.

Both the orders passed by the Court below have been

challenged before this Court by way of filing the instant Misc.

petition.

Learned counsel for the petitioner submits that every

accused has a right to defend his case and that is akin to the

fundamental right guaranteed by the Constitution of India. He

submits that the accused has a right to lead his evidence only

when the stage of prosecution evidence is complete, and the

explanation has been sought under Section 313 of the Cr.P.C,

therefore, he has not made any delay in moving the application.

He submits that right from the day one it was asserted by him

that he never appended his signatures on the cheque in question.

The counsel drew attention of this Court towards the copy of

the cheque wherefrom it would be manifested that the signature

of the drawer has been crossed at two places and the third

signature is appended under the seal.

Learned counsel submits that alteration in any negotiable

instrument is to be probed before acting upon the same. He

submits that as envisaged in Section 87 of the Negotiable

Instruments Act:-

"Any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties"

He thus submits that this is a fit case for interference

by this Court where material alteration on the cheque in

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question is very much evident. He places reliance on the

following judgments rendered by the Hon'ble Supreme

Court in the cases of:-

1. T Nagappa Vs. Y.R Muralidhar (Criminal Appeal No. 707 of 2008).

2. Kalyani Baskar Vs. M.S. Sampoornam (Criminal Appeal No. 1293 of 2006).

3. Natasha Singh Vs. Central Bureau of Investigation (Criminal Appeal No. 709 of 2013).

Per contra, learned counsel for the complainant

vehemently opposed the submissions as made by the counsel

for the petitioner. He submits that the accused petitioner has

not raised this issue ever before the Court and lastly, it was

raised at the time when both the parties had adduced evidence

in respect of their contentions in their pleas. He submits that

the said cheque has not been dishonored due to material

alteration in the negotiable instrument, rather the same had

been dishonored due to insufficiency of funds in the account of

the accused petitioner. Counsel relied upon the following

judgments:-

1. S. Minz Vs. Madhu Bala Gupta (Crl. Rev. Petiton No. 573/2011).

2. L.C Goyal Vs. Mrs. Suresh Joshi and Ors. (AIR 1999 Supreme Court 2222).

3. Raj Kumar Gupta Vs. State of Rajasthan and Anr. (S.B Cr. Misc. Petition No. 1909/2009). Heard.

After pondering over the submissions made by the counsel

for the parties and on going through the entire material as made

available by the counsel for the parties, more particularly, the

cheque in question. From the naked eyes, it can be seen that the

interpolation has been made in the signatures on the cheque in

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question. If the accused questions the correctness of the

documents and asserts that the signatures appended on the

cheque in question were never made by him, he should be given

an opportunity for sending the cheque in question to the expert

for seeking his opinion in respect of the genuineness of the

document. An accused has a right to lead evidence in his defence

after the explanation under Section 313 of the Cr.P.C is sought.

The prayer made by the counsel for the petitioner appears to

be genuine one as before reaching to a final conclusion regarding

the correctness of the signature on the cheque in question,

opinion should have been sought from the expert. Section 45 of

the Indian Evidence Act provides provisions for the same.

In this view of the matter and the submissions made by the

parties, I deem it appropriate to direct learned Judicial Magistrate

to send the cheque in question to the FSL for the expert opinion

regarding the material alteration/ interpolation made in the

signature appended on the cheque.

Accordingly, the Misc. Petition is allowed. The order passed

by learned Judicial Magistrate, Bali in regular case No. 243/2010

titled as Prakashchand Sharma Vs. Rewa Shankar Prajapat passed

on 08.02.2017 and the order passed by the learned A.S.J in

revision are hereby quashed and set-aside. The learned Judicial

Magistrate is directed to send the cheque in question to the FSL

for the expert opinion as discussed above. Since, the matter is

pending since 2010, therefore, this Court deems it proper to direct

the court below as well as the FSL that the needful shall be done

within three months from the receipt of the order and receipt of

the cheque to the FSL.

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Accordingly, the petition and the stay application stand

disposed of.

(FARJAND ALI),J 186-Faheem

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