Sri Pramod Tiwari v. State of Uttarakhand and Another

Mr. Lalit Sharma, learned counsel for the Respondent/2 Hon’ble Ashish Naithani, J. By this Recall Application, the Applicant seeks recall of the order dated 05.08.2025 passed by this Court. The Applicant asserts that due to an inadvertent clerical/procedural error, an order pertaining to an entirely different matter relating to FIR No. 252 of 2022 of Police Station Jwalapur, District Haridwar came to be uploaded under the present case title, resulting in dismissal of his application without adjudicating the facts and issues of the present case that is Criminal Misc. Application No. 817 of 2025.

2. The criminal miscellaneous application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, has been filed by the Applicant challenging the order dated 21.02.2025 passed by the learned 1st Judicial Magistrate, Haldwani, District Nainital in Criminal Case No. 506 of 2022, “Devesh Kabadwal v. Pramod Tiwari”, whereby the application under Section 243(2) Cr.P.C. filed by the accused-Applicant seeking expert’s opinion on the cheque in question was rejected. The Applicant has further assailed the order dated 22.04.2025 passed by the learned 1stAdditional District Judge, Haldwani, District Nainital, in Criminal Revision No. 15 of 2025, titled as “Pramod Tiwari vs. State 1 MCRC No. 2 of 2025 in Criminal Misc. Application No.817 of 2025-----Sri Pramod Tiwari vs. State of Uttarakhand and Another Ashish Naithani J. of Uttarakhand and Ors”, whereby the revision preferred by the Applicant was dismissed.

3. The Applicant and Respondent no. 2 were business partners for over 10 years who maintained a joint office and kept their business documents in a common almirah. Following the COVID-19 pandemic, their business relationship deteriorated due to disputes over account settlement. The Applicant alleges that when he requested return of documents and cheque books from the joint safe, Respondent no. 2's brother made excuses and failed to return them. Fearing misuse, the Applicant claims he wrote to his bank on 21.06.2021 requesting stop payment on cheques.

4. In the pending complaint case, the Applicant moved an application under Section 243(2) Cr.P.C. seeking an expert’s opinion on the handwriting and ageing of the ink on the cheque, asserting that such forensic examination would demonstrate that the cheque was fraudulently filled and misused without his authority.

5. The learned trial court dismissed the said application on 21.02.2025, holding that even if the handwriting was proved to be of another person, it would not affect the liability of the accused under Section 138 NI Act.

6. The Applicant's revision against this order was dismissed by the learned 1stAdditional District Judge vide order dated 22.04.2025, which held that even if the complainant took a blank but signed cheque and misused it, there was no necessity to send the cheque for handwriting expert examination based on established legal principles.

7. Heard learned counsel for the parties specifically on the issue of recall as well as on the merits of the present criminal miscellaneous application.

8. Learned counsel for the Applicant submits that the trial court and revisional court erred in dismissing his application under Section 243(2) CrPC. The Applicant has consistently admitted his signature on the cheque but maintains that it was later filled and misused by the Respondent after being taken from their 2 MCRC No. 2 of 2025 in Criminal Misc. Application No.817 of 2025-----Sri Pramod Tiwari vs. State of Uttarakhand and Another Ashish Naithani J. shared office. Forensic examination of ink and handwriting was therefore essential to substantiate this defence.

9. It is urged that the courts below adopted a restrictive view, holding such examination unnecessary, whereas the real object of Section 243(2) is to assist the accused in presenting a complete defence. Without expert opinion, the Applicant is left unable to establish that the cheque was fraudulently filled and misused.

10. Learned Counsel further submits that denial of this opportunity has seriously prejudiced the Applicant’s case and amounts to violation of his fundamental right to a fair trial under Article 21 of the Constitution. The impugned orders, being contrary to law and principles of natural justice, deserve to be set aside.

11. On the other hand, learned counsel for Respondent no.2 contends that the present petition is an abuse of process, filed only to delay proceedings under Section 138 NI Act. The Applicant has never disputed his signature, and once execution is admitted, the presumption of liability under Section 139 NI Act follows.

12. It is argued that the plea of misuse is an afterthought, contradicted by the Applicant’s own letter dated 21.06.2021 to his bank, wherein he reported that his cheque book had been lost. In such circumstances, expert opinion on ink or handwriting is wholly irrelevant, as the legal liability arises from the admitted signature itself.

13. Learned Counsel submits that the trial court and revisional court rightly rejected the application as meritless, relying on settled principles of law. The impugned orders are reasoned and justified, and no interference is warranted by this Hon’ble Court.

14. Upon perusal of the recall application and the record of Criminal Misc. Application No. 817 of 2025, this Court finds that the order dated

05.08.2025 uploaded in the present matter does not pertain to this case at all. The factual narration, discussion, findings, and operative conclusions contained therein 3 MCRC No. 2 of 2025 in Criminal Misc. Application No.817 of 2025-----Sri Pramod Tiwari vs. State of Uttarakhand and Another Ashish Naithani J. correspond entirely to a different criminal matter. Not a single factual aspect, submission, or legal issue arising from the present proceedings finds mention in the said uploaded order. The error is clearly clerical and inadvertent, warranting exercise of recall jurisdiction to prevent miscarriage of justice.

15. This Court is satisfied that the order dated 05.08.2025 was not an adjudication of the present matter at all. The error is purely procedural, inadvertent, and unintended. The recall jurisdiction may be exercised to rectify such errors, which strike at the root of the adjudicatory process.

16. On examining the case afresh, it is evident that both courts below committed a legal error in rejecting the Applicant’s request under Section 243(2) Cr.P.C. for sending the cheque to a forensic expert for handwriting and ink-age examination. The Applicant admits his signature on the cheque but asserts that the body of the cheque was subsequently filled by the complainant after obtaining it from their shared business office. The defence raised is neither implausible nor irrelevant, and the expert examination sought is directly connected to establishing the defence of misuse.

17. Section 243(2) Cr.P.C. mandates that, in a warrant-case instituted otherwise than on police report, the accused must be afforded the fullest opportunity to lead evidence in his defence unless the request is frivolous or intended solely to delay the proceedings. The trial court and the revisional court adopted a restrictive approach by prematurely concluding that even if handwriting on the cheque is found to be of someone else, liability under Section 138 NI Act would remain unaffected. Such reasoning amounts to prejudging the defence and is contrary to the statutory presumption-rebuttal scheme under Section 139 of the NI Act.

18. The accused has a legal right to rebut the presumption of liability under the NI Act through any admissible evidence. Forensic examination of handwriting and ink-age is a legitimate, probative, and relevant mode of rebuttal. Denial of this opportunity seriously prejudices the defence and infringes the Applicant’s constitutional right to a fair trial under Article 21. 4 MCRC No. 2 of 2025 in Criminal Misc. Application No.817 of 2025-----Sri Pramod Tiwari vs. State of Uttarakhand and Another Ashish Naithani J. ORDER The Recall Application is allowed. The order dated 05.08.2025, which was inadvertently uploaded in Criminal Misc. Application No. 817 of 2025 and does not pertain to the present matter, is hereby recalled. Accordingly, the present Criminal Misc. Application No. 817 of 2025 is restored to its original number. This Court after hearing the present matter afresh on merits, hereby set asides the order dated 21.02.2025 passed by the learned 1st Judicial Magistrate, Haldwani, District Nainital and order dated 22.04.2025 passed by the learned 1stAdditional District Judge, Haldwani, District Nainital. Accordingly, the present Criminal Misc. Application No. 817 of 2025 stands allowed. Dated:31.10.2025 SB Ashish Naithani, J. 5 MCRC No. 2 of 2025 in Criminal Misc. Application No.817 of 2025-----Sri Pramod Tiwari vs. State of Uttarakhand and Another Ashish Naithani J.