Shri Ashish Didwaniya S/o Sitaram Didwaniya Aged About 45 Years R/o House No. 291/A v. Amit Agrawal S/o Late Radheshyam Agrawal Aged About 48 Years Proprietor Amit Minerals Company
Case Details
1 2025:CGHC:21362 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR (Order reserved on 19/02/2025) (Order delivered on 08/05/2025) CRMP No. 2796 of 2024 Shri Ashish Didwaniya S/o Sitaram Didwaniya Aged About 45 Years R/o House No. 291/A, Near Samta Arcade, Samta Colony, Raipur, Tahsil And District Raipur (C.G.) ... Petitioner versus Amit Agrawal S/o Late Radheshyam Agrawal Aged About 48 Years Proprietor Amit Minerals Company, R/o Shri Radhe Complex, Rathore Chowk, Ramsagarpara, Raipur, Tehsil And District Raipur (C.G.) ... Respondent For Petitioner : Mr. Manoj Paranjpe, Advocate For Respondent : Mr. Pragalbha Sharma, Advocate (Hon'ble Shri Arvind Kumar Verma, Judge) C A V Order 1. The petitioner has filed the instant petition under Section 528 of Bhartiya Nagarik Suraksha Sanhita, 2023 for quashment of order dated 14/08/2024 passed by the 4th Additional Sessions Judge, Raipur, in Criminal Revision No.241/2024, whereby the revision preferred by ASHUTOSH MISHRA Digitally signed by ASHUTOSH MISHRA Date: 2025.05.12 18:23:10 +0530 2 the petitioner has been dismissed and the order passed by the Judicial
Legal Reasoning
Magistrate First Class dated 06/05/2024 passed in Complaint Case No.1686 of 2019 has been upheld. 2. By way of the instant petition, the petitioner has prayed for the following reliefs:- “It is, therefore prayed that the Hon’ble Court may kindly be pleased to allow the instant 528 petition filed by the petitioner and the impugned order dated 14.08.2024, passed in Criminal Revision No.241/2024 may kindly be set-aside and the application preferred by the petitioner under Section 243(2) of the Code of Criminal Procedure filed before Judicial Magistrate First Class may kindly be allowed and the learned Judicial Magistrate First Class may further be directed to permit the forensic expert to collect the samples of cheque, cheques folio and the original documents, in the interest of justice.” 3. The brief facts of this case are that a complaint was filed by the respondent/complainant before the trial Court against the accused to the effect that the accused issued a cash order No. 010755 dated 20.12.2018 of Rs. 25,00,000/- of ICICI Bank branch, Gore Complex, behind Raj Bhawan, Civil Lines, Raipur, CG to the complainant in payment of his loan obligations, when the complainant called him for 3 payment of the cash order from his Axis Bank Limited branch, Samata Colony, Raipur, CG. When the date was presented in the account, the money order was dishonored with a remark that there were insufficient funds in the account. Even after due notice was sent, the accused did not pay the amount of the money order, hence a complaint was filed under Section 138 of the Negotiable Instruments Act, 1881 on 19.02.2019. Taking cognizance of this, the trial Court registered the complaint of the complainant and after the appearance of the accused, a crime statement was prepared against him under Section 138 of the Negotiable Instruments Act, 1881.It was fixed for evidence. On 16.11.2022, the complainant's evidence was completed and the case was fixed for the statement of the accused and on 07.10.2023, at the stage of defence evidence, an application was presented on behalf of the accused under section 243(2) of the Code of Criminal Procedure, which was rejected by passing the impugned order on 04.11.2023. 4. Being, aggrieved by the order dated 04/11/2023, the petitioner preferred a revision and the said revision was allowed by order dated 25/04/2024 wherein the Fourth Additional Sessions Judge, Raipur in para 15 observed that from the perusal of the record of the trial Court it is apparent that the matter is pending since 2019, therefore, in such circumstances, trial Court is directed to give an opportunity to both the parties for the process of taking samples in relation to the forensic 4 investigation of the cheque in question within 15 days and it is also directed to ensure that the said action is taken within the said period and after the sampling process in respect of sample forensic investigation, the said investigation and after receiving the report in this regard, the process of evidence related to it should be completed as early as possible. 5. Thereafter, pursuant to the order dated 25/04/2024 on 06/05/2024 the case was fixed for forensic sample proceedings on that date one Handwriting Expert from Greater Noida, U.P. was present in the Court and he took the sample of the accused with regard to signature and pleading mentioned in Ex. P/1 i.e. the cheque in question and also took photographs in his phone, however, at the same time the learned counsel for the accused stated to take sample of Ex. D/8, which was
Legal Reasoning
opposed by learned counsel for the complainant on the ground that no order to take sample of Ex. D/8 has been passed. The learned trial Court after appreciating the materials and pleadings and submissions observed that although the order dated 04/11/2023 passed on the said application submitted by the accused has been set aside by the learned Revisional Court, but in the light of clause 15 of the order dated 25/04/2024 of the said revision petition, the trial court has been directed to take sample of only the cheque in question and according to the principle of jurisprudence, the direction, order given by the higher court should be followed by the trial court in letter and spirit. 5 Therefore, in the light of the said principle, the submissions and arguments of the accused are rejected as being contrary to the law and permission for sampling of document of Ex. D. 08 is not granted. At this stage the court stated to the expert present that the necessary action for sample sampling proceedings has been completed. The expert present asked for time to submit his investigation report and the time was granted to him and the case was fixed for 28/05/2024. Thereafter, different dates passed and eventually on 24/07/2024, the report of handwriting expert was received in the Court. 6. Being aggrieved by the order dated 06/05/2024 again a revision was preferred on the ground that the Court has rejected the prayer to get the forensic test done of Ex. D/8. Thereafter, the additional Sessions Judge too rejected the said revision and held that the revisionist has filed the revision on the ground that the court has not interpreted the order dated 25.04.2024 passed earlier in Revision Petition No. 41/2024 in its true perspective. In the order passed by the Revision Court in Revision Petition No. 41/2024, it has been clearly directed that the trial court has to take action regarding taking samples for forensic investigation in relation to the cheque in question. The trial court has taken action by following the said order as per the direction given in the said revision petition through the impugned order dated 06.05.2024, in which no error of any kind is shown. Therefore, after considering all the facts, the impugned order of the trial court dated 06/05/2024 is not found to be lacking in correctness, validity or propriety. Therefore, the submission made on behalf of the revisionist/accusedThe revision petition is dismissed and the impugned order dated 06/05/2024 of the trial court is confirmed. 7. Learned counsel for the petitioner would submit that the learned 6 Magistrate as well as the Session Judge while passing the impugned order and while rejecting the application under Section 243(2) of Code of Criminal Procedure filed by the petitioner have failed to appreciate the contents of the said application and the scope of Section 243(2) of Code of Criminal Procedure. He would next contend that the learned courts below have failed to appreciate that, the complainant have admitted in his cross examination that there is a difference in handwriting between the date and contents of the cheque. He would next contend that the learned courts below have failed to appreciate that, the petitioner has proved by leading the documentary evidence that the cheque was issued in 2016 without mentioning the date and the said fact has been fortified by the Bank officials. He would next contend that the learned courts below have failed to appreciate the Section 139 and 118(2) of Negotiable Instrument Act, 1881 in its correct prospective. He would next contend that filing of the application under Section 243(2) of Code of Criminal Procedure at the fag end of trial would itself cannot be a ground to reject the application and delay in filing the application will not be a ground to thrown out the application for forensic expert report, if the said report goes to the route of the matter. He would next contend that if the hand writing expert opinion will be placed before the concerned court and it will be proved that the cheque was issued in the year 2016 than the petitioner would be able to prove his 7 defense. He would next contend that the learned Judicial Magistrate First Class was bound by the directions issued by the revisional court on 25.04.2024 and he cannot change the tenor of the order passed by the revisional court and gives his own interpretation. He would lastly submit that the impugned order being illegal, erroneous and contrary to law is liable to be set-aside. 8. Per contra, learned counsel for the respondent would submit that the order passed by the revisional Court are well merited which do not call for any interference by this Court and submits that the instant petition may be dismissed. 9. I have heard learned counsel for the parties at length and perused the documents with utmost circumspection. 10. In order to adjudicate the case, I have perused the application filed by the petitioner filed under Section 243 (2) of the Cr.P.C. perusal of the same would show that in the entire application the petitioner has referred the cheque in question as Ex. P/1 and in the prayer clause it has been prayed that Hon’ble Court may kindly be pleased to direct that the above cheque in question may kindly be sent for Forensic Test. 11. The Revisional Court on the application made by the petitioner accepted his revision and allowed the same and looking to the pendency of the matter since the matter was pending from 2019 8 allowed the application of the petitioner and directed the trial Court to get the cheque in question be tested by the Forensic Expert. Pursuant to the said order, when the trial Court proceeded for forensic test of the Cheque in question (Ex. P/1) at that time the petitioner objected and tried to make a prayer to get the another cheque Ex. D/8 tested by the Forensic Expert which the JMFC has rejected. 12. Against the said order the petitioner again moved a revision before the Sessions Court and the Sessions Court rejected the said revision by holding that the revisional Court in Review Petition bearing No.41/2024 has clearly ordered the trial Court to get the forensic test done for the “cheque in question” i.e. Ex. P/1 and the trial Court has acted in accordance with the direction issued in the order dated 06/05/2024 and there is no illegality or infirmity in the same and rejected the revision of the petitioner. 13. Considering the averments made by the petitioner in the application under Section 243 (2) Cr.P.C. which shows that in the application, the petitioner has only prayed for the forensic test in respect of cheque in question i.e. Ex. P/1 and after getting the order under the garb of order for the forensic test in respect of Ex. P/1 subsequently tried to obtain the more relief which has neither been prayed nor granted by the Court. Therefore, in absence of specific prayer or specific direction, the trial Court as well as the revisional Court have rightly rejected the prayer of the petitioner. 9 14. In such circumstances, the petitioner is not entitled for any relief. Accordingly, the petition being devoid of substance is liable to be and is hereby dismissed. SD/- (Arvind Kumar Verma) Judge Ashu