Uttarakhand High Court
Prem Rathor vs State Of Uttarakhand & Another on 7 March, 2025
Author: Pankaj Purohit
Bench: Pankaj Purohit
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application U/s 482 No. 313 of 2024
07th March, 2025
Prem Rathor .......Applicant
Versus
State of Uttarakhand & another .........Respondents
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Presence:-
Mr. Ajay Joshi, Advocate for the applicant.
Mr. B.C. Joshi, A.G.A. with Mr. S.B. Dobhal, B.H. for the State.
Ms. Sheetal Selwal, Advocate for respondent no.2.
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Hon'ble Pankaj Purohit, J.
This criminal misc. application has been filed
under Section 482 Cr.P.C. challenging the order dated
19.12.2023, passed by learned Ist Additional District &
Sessions Judge, Haldwani, District Nainital in Criminal
Revision No.125 of 2023, Prem Rathor Vs. Prem Kumar
and another and a further prayer for setting aside the
order dated 13.04.2023, passed by learned IInd Judicial
Magistrate, Haldwani, District Nainital in Criminal Case
No.3745 of 2021, Prem Kumar Vs. Prem Rathor, whereby
the application dated 20.02.2023 of the applicant has
been dismissed.
2. Facts in a nutshell are that a case under
Section 138 of Negotiable Instruments Act, 1881
(hereinafter referred to as "Act of 1881") was filed by
respondent no.2/complainant before the court of learned
IInd Judicial Magistrate, Haldwani, District Nainital. In
that case the statement of complainant was recorded as
PW1. During pendency of case, the accused moved an
application on 20.02.2023, requesting therein to send the
alleged cheque for conducting the forensic examination of
the same before the Forensic Laboratory for the purpose
of examining the veracity of the cheque. Against the said
application the applicant also filed his objection on
23.03.2023.
3. The learned court of IInd Judicial Magistrate,
Haldwani, District Nainital vide its order dated
13.04.2023 rejected the application, moved by the
accused on 20.02.2023 and the matter was directed to be
fixed for further evidence.
4. Against the aforesaid order dated 13.04.2023,
accused preferred a revision being Criminal Revision
No.125 of 2023 before the court of learned Sessions
Judge, Haldwani, which was ultimately transferred to the
court of Ist Additional District & Sessions Judge,
Haldwani, District Nainital, who vide impugned judgment
dated 19.12.2023 affirmed the order dated 13.04.2023,
passed by the trial court and resultantly dismissed the
revision.
5. Challenging both the orders present C482
application has been filed.
6. In the application moved by the
applicant/accused, it was stated that in the questioned
cheque, there has been manipulation in the digits of the
amount and besides change in the amount is also quite
visible. It was also stated that there had been an
apparent difference in both the writings/signatures,
which can only be determined by way of forensic
examination. The accused even stated that he was ready
to incur the money for sending the questioned cheque for
the purpose of forensic examination. As against the
aforesaid application, an objection was filed on behalf of
the respondent no.2/complainant stating therein that the
application has been moved by the applicant, just to
linger on the proceedings. Hence the application is liable
to be dismissed.
7. In the opinion of this Court, the applicant has
been denied his legal and valid right. The interest of
justice demands that the accused should be afforded
every reasonable opportunity of examining his evidence.
If the accused has raised an objection regarding the
digits mentioned in the impugned cheque and has also
put a question mark to the signatures made therein, it
was bounden duty of the trial court to send the cheque in
question to the forensic laboratory. Moreover even the
applicant has clearly stated in his application that he
was ready to incur cost of sending the same to the
laboratory.
8. The revisional court has erred in law in not
deciding this fact; depriving the applicant/accused of his
legal right amounts to miscarriage of justice.
9. It is trite that the accused is entitled to fair and
speedy trial, in accordance with law, in the process of
raising a bona fide and probable defence. It is case of the
applicant all throughout that there had been no legal
enforceable debt against him towards the
complainant/respondent no.2.
10. The Apex Court in the case of T. Nagappa Vs.
Y.R. Muralidhar reported in (2008) 5 SCC 633 has
observed as hereunder:-
"7. When a contention has been raised that the
complainant has misused the cheque, even in a case
where a presumption can be raised under Section
118(a) or 139 of the said Act, an opportunity must be
granted to the accused for adducing evidence in
rebuttal thereof. As the law places the burden on the
accused, he must be given an opportunity to
discharge it."
11. The sum and substance of the aforesaid legal
authority is that applicant is well within his right to be
given an opportunity for adducing evidence keeping in
mind the broader aspect of free and impartial trial.
12. In view of what has been stated above the
C482 application is allowed. Judgment and order dated
19.12.2023, passed by learned Ist Additional District &
Sessions Judge, Haldwani, District Nainital in Criminal
Revision No.125 of 2023, Prem Rathor Vs. Prem Kumar
and another and order dated 13.04.2023, passed by
learned IInd Judicial Magistrate, Haldwani, District
Nainital in Criminal Case No.3745 of 2021, Prem Kumar
Vs. Prem Rathor are set aside.
13. The application moved by the
applicant/accused dated 20.02.2023 accordingly stands
allowed.
14. The trial court is directed to send the cheque
in question to the Forensic Scientific Laboratory for the
purpose of examining veracity of the digits as also the
writings/signatures made thereon.
15. The trial court is directed to proceed with the
trial after receipt of such report. This exercise should be
completed at the earliest possible.
(Pankaj Purohit, J.)
07.03.2025
SK
