SHIMLA CR. MMO No. 23 of 2009 · Himachal Pradesh High Court

The Hon(cid:146)ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. V.S. Chauhan, Advocate. For the Respondent : Mr. B.S. Chauhan, Advocate. Kuldip Singh, Judge. This is a petition under Section 482 Cr.P.C. for setting aside the order dated 29.1.2005 whereby learned Sub Divisional Judicial Magistrate, Rohru has rejected the application of petitioner under Section 73 of the Indian Evidence Act for sending the handwritings signatures of respondent alongwith questioned documents to handwriting expert for comparison.

The petitioner facing proceedings initiated by respondent on the basis of complaint filed by him under Section 138 of the Negotiable Instrument Act, 1881. The petitioner had filed an application dated 18.12.2004 under Section 73 of the Indian Evidence Act (for short Act) stating therein that in the defence evidence Whether the reporters of the local papers may be allowed to see the Judgment?Yes (cid:133)2(cid:133) cheques Ex.DW1/B, Ex.DW1/C, Ex.DW1/D have come on record. Ex.P-1 is also on record. The perusal of said cheques indicates that names of persons as well as signatures on the cheques Ex.DW1/C and Ex.DW1/D have been written and signed by one person which are in consonance with the signatures and handwritings on cheque Ex.DW1/B and another cheque Ex.P-3. This has been done by Jai Parkash complainant. It has also been stated that aforesaid documents require comparison by learned Court or handwriting expert after obtaining the handwritings of Jai Parkash. In the end, prayer has been made for allowing the application. The application has been contested by respondent by filing the reply. The learned Sub divisional Judicial Magistrate has dismissed the application on

29.1.2005.

I have heard learned counsel for the parties and have also gone through the record. The evidence of the complainant in the case is over. The statement of petitioner has also been recorded under Section 313 Cr.P.C. The petitioner has examined three witnesses in defence. DW-1 Agya Ram is an employee of the UCO bank, Rohru. DW-2 Jagdish Singh son of Gulat Ram is the real brother of complainant, he has stated that cheques Ex.DW1/D and Ex.DW1/C do not bear his signatures. DW-3 Jadish Chand son of Karam Singh has been examined by petitioner in order to prove that when accounts were settled, two cheques were issued which are Ex.DW1/D and Ex.DW1/C. An amount of Rs.25,000/- was already paid to petitioner vide Ex.DW1/B. In the cross-examination of the (cid:133)3(cid:133) respondent cheque No.867881 and cheque No.867882 were put to him and he denied that such cheques were given to him.

The limited question for consideration is the application filed by petitioner under Section 73 of the Act. The petitioner in his statement under Section 313 Cr.P.C.has not stated that the cheques Ex.DW1/B, Ex.DW1/C and Ex.DW1/D were signed and written by respondent. It has been suggested to respondent in cross- examination that since the signatures of petitioner were on Ex.P-3 (cheques in question), therefore, the respondent has wrongly prepared documents Ex.CW1/B and Ex.CW1/A. The suggestion has also been put to the respondent in cross-examination that an amount of Rs.57, 000/- has been drawn after filling the name of his brother. The respondent has been ultimately given suggestion that nothing is to be given by the petitioner to him.

The question is regarding the bonafidies of the petitioner for filing application under Section 73 of the Act. Ex.P-8 dated

10.4.2001 written by petitioner is on record. The cheque in question on the basis of which the complaint has been filed is Ex.P3 having number 749540. Ex.P8 indicates that on 10.4.2001 petitioner had written to the bank that payment of cheque No.749540 etc. has already been made in cash, therefore, cheque No.749540 and other cheques mentioned in the letter dated 10.4.2001 may not be cashed. Thus on 10.4.2001, the petitioner is making representation to the bank that amount of cheque No.749540 has already been paid. In these circumstances payment respondent through cheque Ex.DW1/C dated 1.5.2001 amounting to Rs.30,000/- and cheque (cid:133)4(cid:133) Ex.DW1/D dated 20.8.2001 amounting to Rs.27,000/- is a big question mark. These facts are relevant in order to consider the bonafidies of the petitioner for filing application under Section 73 of the Act.

The petitioner had first time put in appearance in the Court on 27.11.2003 and completed his evidence on 6.12.2004 and thereafter filed the application under Section 73 of the Act. The application filed by the petitioner is not bonafide. It appears the purpose of the petitioner is only to delay the proceedings and he has succeeded to some extent in his mission. The petitioner has failed to make out a case for sending the documents mentioned in the application under Section 73 of the Act to the handwriting expert after obtaining handwritings and signatures of the respondent. The complaint is to be decided on the basis of allegations made in the complaint and evidence led by the parties. The main controversy is about cheque Ex.P3. There is no merit in the petition which is accordingly dismissed.

The parties are directed to appear before learned Sub Divisional Judicial Magistrate, Rohru on 15.3.2010. The learned trial Court is directed to decide the complaint expeditiously and preferably in three months from the date of receipt of record. The Registry is directed to transmit the record to the learned trial Court immediately, so as to reach before the date fixed. February 22, 2010 (sks) (Kuldip Singh), Judge.