High Court
Case Details
Court No. - 73 Case :- APPLICATION U/S 482 No. - 5738 of 2023 Applicant :- Mohit Tyagi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Syed Ali Imam Counsel for Opposite Party :- G.A. Hon'ble Shiv Shanker Prasad,J.
Legal Reasoning
Heard learned counsel for the applicant and learned Additional Government Advocate for the State, as well as perused the materials on record. This application under Section 482 Cr.P.C. has been filed to set aside the order dated 17.12.2022 passed by the Special Court (N.I. Act), Ghaziabad in Complaint Case No. 26 of 2022, under Section 138 of N.I. Act, Police Station Indrapuram, District Ghaziabad as well as order dated 17.01.2023 passed by Sessions Judge, Ghaziabad in Criminal Revision No. 37 of 2023. The fact is that the opposite party no. 2 is the wife of complainant, namely, Sudhir Verma, who died during the pendency of the trial of present case. Husband of opposite party no.2 (for short "complainant") filed a complaint case against the applicant before the Magistrate concerned, under Section 138 of Negotiable Instrument Act, Police Station Indrapuram, District Ghaziabad, which was initially registered as Complaint Case No. 169 of 2014 and the same was subsequently renumbered as Complaint Case No. 1038 of 2016 and newly number as Complaint Case No. 26 of 2023, which is now pending before the Special Court (N.I. Act), Ghaziabad. Along with the aforesaid complaint, the complainant filed the copy of the cheque, which was dishonored by the concerned Bank with the remark "insufficient fund". Learned counsel for the applicant submits that in the aforesaid case, the applicant was summoned vide order dated 08.08.2014, under Section 138 N.I. Act to face the trial. After service of the summoning order, the accused- applicant appeared and obtained bail and during course of trial his statement was recorded on 18.04.2017, under Section 251 Cr.P.C., wherein he categorically denied that he did not give the cheque in question to the complainant, namely, Sudhir Verma, however he admitted his signature appended on the said cheque. He further submits that subsequently, the complainant also filed his evidence in form of affidavit and he was cross-examined on behalf of the accused- applicant, wherein the complainant categorically stated that the cheque given by the accused-applicant to him is in his own handwriting. On examination of the said cheque which was produced before the court below, the accused-applicant filed an application dated 18.04.2018, wherein it was stated that while giving the said cheque to the complainant, he had only filled Rs. 50,000/- in the cheque in question and one extra zero (0) was added on the same in figure "50000" and it appears that after receiving the said cheque from the applicant, the complainant has added one more zero after figure " 50000" for making it to be Rs. 5,00,000/- and such acts of the complainant amounts to fraud and forgery and for establishing such facts, the applicant prayed that for ascertaining the genuineness of the said cheque qua total amount appended thereon, opinion of an Hand Writing Expert may be obtained in this case for just decision. When no order was passed on the application of the applicant and trial was proceeded, the accused-applicant filed another application for the same prayer on 26.08.2022. After hearing both the parties, the Trial Court vide order dated 17.12.2022, rejected the application dated 26.08.2022 filed by the applicant on the ground that the delaying tactics is being adopted by the accused-applicant by filing such application. It is further submitted by the learned counsel for the applicant that being aggrieved by the order dated 17.12.2022, the accused- applicant preferred a Criminal Revision bearing Criminal Revision No. 37 of 2023 (Mohit Tyagi Vs. State of U.P. & Another) before the District & Sessions Judge, Ghaziabad. After hearing both the parties, the Sessions Judge, Ghaziabad, vide order dated 17th January, 2023 also rejected the aforesaid Criminal Revision filed by the applicant, without considering the facts and circumstances of the case. He further submits that the impugned orders dated 17.12.2022 and 17.01.2023 were passed in a mechanical manner and without considering the facts and circumstances of the case. The learned Court below while dealing with the case did not consider the issue raised by the accused applicant that the cheque in question is manipulated by the complainant while adding one more zero in figure "50000" on the said cheque which is not in the hand writing of the applicant. The submission of the counsel for the applicant is that to secure the ends of justice, it is necessary to obtain the expert opinion about the handwriting made on the cheque as one more zero (0) added after figure "50000" is not in the hand-writing of the applicant and the same has been added in other hand-writing. On the cumulative strength of the aforesaid, learned counsel for the applicant submits that the orders impugned passed by the court below and the Sessions Judge cannot be legally sustained and are liable to be quashed. Sri M.P. Singh Gaur, learned A.G.A. has submitted that there is contradiction in the statement of the applicant and it is admitted fact that the aforesaid cheque was signed by the applicant himself and the amount was also filled by him and thereafter the same was given by him to the complainant, who produced the same in his bank for encashment, but could not dispute that the amount which was filled by the applicant in the said cheque is Rs. 50,000/- or 5,00,000/- and one more zero has been added in other hand-writing. After considering the submissions made by the learned counsel for the parties and perusing the material available on record, this Court is of the view that for serving the substantial justice, it is necessary for this Court to examine the contention of the learned counsel for the applicant that on the cheque in question, one more zero in figure "50000" has subsequently been added by perusing the copy of the cheque in question, which has been enclosed as Annexure-2 to the affidavit accompanying the present application under Section 482 Cr.P.C. and this Court prima facie finds substance in the submission made by the learned counsel for the applicant. However, since this Court is not an expert to examine as to whether one more zero after figure "50000" has been added or not, it would be in the interest of substantial justice to direct the court below/trial court to pass a fresh order on the application made by the applicant dated 26.08.2022 after calling for a report of the Hand Writing Expert qua the hand-writing appended on the cheque in question. Accordingly, the order dated 17.12.2022 passed by the Special Court (N.I. Act), Ghaziabad in Complaint Case No. 26 of 2022, under Section 138 of N.I. Act, Police Station Indrapuram, District Ghaziabad as well as order dated 17.01.2023 passed by Sessions Judge, Ghaziabad in Criminal Revision No. 37 of 2023 are hereby set aside. The matter is remanded to the court below/trial court to consider and decide the application of the applicant dated 26.08.2022 afresh by means of a reasoned speaking order, in accordance with law after calling for opinion of Hand Writing Expert and affording opportunity of hearing to the parties concerned, preferably within a period of one month from the date of production of a certified copy of this order. This application is allowed subject to the observations / directions made herein-above. Order Date :- 5.4.2023 SK Srivastava Digitally signed by :- SAILESH KUMAR SRIVASTAVA High Court of Judicature at Allahabad