Uma Pareek vs Rampyari
2022 Latest Caselaw 3982 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 30/2022

Uma Pareek D/o Sh. Ramchandra Pareek W/o Sh. Subhodh Pareek, Aged About 53 Years, Near Surya Mandir, Kamdaron Ka Mohalla, Kuchaman City, Teh. Kuchaman City, Dist. Nagaur (Raj.).

----Petitioner Versus Rampyari W/o Sh. Motiram D/o Sh. Todaram, Rajaliya, Teh.nawan, Dist. Nagaur At Present Residing At Station Road, Karni Vihar Colony, Kuchaman City, Teh. Kuchaman City, Dist. Nagaur. (Raj.).

                                                                 ----Respondent


For Petitioner(s)         :     Mr. Mukesh Vyas
For Respondent(s)         :     Mr. Mahipal Bishnoi, Public Prosecutor



                     JUSTICE DINESH MEHTA

                                     Order

14/03/2022

1. The present misc. petition under Section 482 of the Criminal

Procedure Code (hereinafter referred to as the 'Code') is directed

against the order dated 23.12.2021, passed by the Judicial

Magistrate, Kuchaman City, District Nagaur (hereinafter referred

to as "the trial Court"), whereby petitioner's application dated

12.11.2021 under Section 311 of the Criminal Procedure Code has

been rejected.

2. The facts relevant for the present purposes are that on

08.06.2018, the respondent-complainant filed a complaint under

Section 138 of Negotiable Instruments Act, 1881 against the

present petitioner before the Court of the Judicial Magistrate,

Kuchaman City, District Nagaur alleging, inter-alia, that the

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accused handed over a cheque for the sum of Rs.5,00,000/-,

which got dishonoured with the remark "account closed". The

petitioner took a plea that the signature on the cheque in question

was not hers.

3. In order to establish the same, the present petitioner moved

an application dated 01.03.2021 under Section 45 of the Indian

Evidence Act, 1872, which application was rejected by the learned

trial Court vide its order dated 01.03.2021, while observing that

the same was filed belatedly.

4. The case proceeded and then, the petitioner moved yet

another application dated 12.11.2021 along with a report of the

private handwriting expert dated 10.11.2021 and prayed that the

same be taken on record and considered.

5. Learned trial Court rejected the said application vide order

dated 23.12.2021 with a cost of Rs.2000/-, inter-alia, observing

that the said application has been filed at the stage of final

argument and thus not maintainable, particularly when its earlier

order dated 01.03.2021 has attained finality.

6. Mr. Mukesh Vyas, learned counsel for the petitioner argued

that the Court below has erred in rejecting petitioner's application

on the ground of delay, while submitting that the provision under

Section 311 of the Criminal Procedure Code can be invoked at any

stage.

7. In support of his argument aforesaid, learned counsel relied

upon the judgment dated 24.04.2008, rendered in the case of T.

Nagappa Vs. Y.R. Muralidhar reported in 2008 AIR (SC) 2010

and the judgment dated 17.07.2018, rendered in the case of

Ramesh Sharma Vs. State of Raj. through PP reported in

2019(1) NIJ 72 and argued that it was incumbent upon the trial

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Court to have sent the cheque for the opinion of a handwriting

expert.

8. Heard.

9. Indisputably, an application under Section 45 of the Indian

Evidence Act, 1872 filed by the petitioner on 01.03.2021, had

already been rejected by the trial Court vide its order dated

01.03.2021, against which the petitioner had filed a misc. petition,

and the same was dismissed as withdrawn.

10. The petitioner has thereafter invoked provisions of Section

311 of the Criminal Procedure Code and requested the trial Court

to summon the private handwriting expert.

11. In the opinion of this Court, when petitioner's earlier

application for sending the cheque to handwriting expert for

verification of the signatures has been rejected by the trial Court

and the same has attained the finality, the petitioner's prayer to

place opinion of private handwriting expert is nothing short of

abuse of the process.

12. As, the order rejecting application under Section 45 of the

Indian Evidence Act, 1872 has attained finality, the second

application cannot be entertained, moreover when the case in

question is at the stage of final hearing.

13. True it is, that an application under Section 311 of the

Criminal Procedure Code can be filed at any time, but then, the

Court cannot be oblivious of the stage of the proceedings. The

Court has to bear in mind the subtle but significant difference

between the expression 'Any time' and 'any stage'.

14. The application, as a matter of fact, has not been rejected on

the ground of delay, but considering the stage of the proceedings.

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15. So far as judgments relied upon by learned counsel for the

petitioner are concerned, the same are on the point of an accused

getting liberty to defend the case, in which it was held that the

opinion of handwriting expert should normally be permitted.

These judgments, could perhaps have had a bearing when

petitioner's first application under Section 45 of the Indian

Evidence Act, 1872 was rejected.

16. The misc. petition is, therefore, rejected.

17. Stay petition also stands dismissed accordingly.

(DINESH MEHTA),J 171-Ramesh/-

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