State of U.P. and Another v. Party

Smt. Sharda Sharma Alias Smt. Sharda Devi State of U.P. and Another Versus .....Applicant(s) .....Opposite Party(s) Counsel for Applicant(s) Counsel for Opposite Party(s) : Vinod Singh : G.A., Jitendra Kumar Tripathi Court No. - 75 HON'BLE VIKAS BUDHWAR, J.

1. Counter affidavit filed today is taken on record.

2. Heard Sri Vinod Singh, learned counsel for the applicant in the leading and connected applications as well as Sri S.P. Singh, learned State Law Officer for the State and Sri Jitendra Kumar Tripathi, learned counsel for the complainant in the leading and connected applications.

3. A statement has been made by counsel for the applicant that he does not propose to file any rejoinder affidavit and the applications be decided on the basis of the documents available on record.

4. The case of the applicant in the leading application is that a complaint stood preferred by the opposite party no. 2 against the applicant under Section 138 of the NI Act with an allegation that the applicant herein had 2 NA528 No. 18186 of 2025 drawn a cheque with respect to discharge of his liability dated 24.04.2019 bearing no. 0583500 which on presentation in the bank came to be dishonored on 14.05.2019 followed by a statutory demand notice dated 25.05.2019 and a complaint under Section 138 of the NI Act on 12.06.2019 pursuant whereto the applicant came to be summoned on 08.08.2019. The applicant contested the trial and the statement under Section 251 Cr.P.C. and 313 Cr.P.C. was recorded, however, the applicant had preferred an Application u/s 45 read with Section 39(1) of the Indian Evidence Act, 2023 for sending the cheques for expert opinion on 14.02.2025. The said application came to be rejected by the court below on 07.04.2025 in Complaint Case No. 9370 of 2019.

5. As regards the connected application is concerned, a complaint stood lodged by the opposite party no. 2 against the applicant under Section 138 of the NI Act with an allegation that the applicant herein had drawn a cheque with respect to discharge of his liability dated 25.04.2019 bearing no. 0583501 of an amount of Rs. 5,00,000/- which on presentation in the bank came to be dishonored on 02.05.2019 followed by a statutory demand notice dated 11.05.2019 and a complaint under Section 138 of the NI Act on 03.06.2019 pursuant whereto the applicant came to be summoned on

09.08.2019. The applicant contested the trial and the statement under Section 251 Cr.P.C. and 313 Cr.P.C. was recorded, however, the applicant had preferred an Application u/s 45 read with Section 39(1) of the Indian Evidence Act, 2023 for sending the cheques for handwriting expert opinion on 14.02.2025. The said application came to be rejected by the court below in Complaint Case No. 9316 of 2019.

6. Learned counsel for the applicant has submitted that the order dated

07.04.2025 passed by the court below in the leading and connected applications rejecting the application preferred by the applicant for getting the handwriting expert opinion cannot be sustained as the court below had not considered the crucial aspect of the matter that the presumption under Section 118 read with Section 139 of the NI Act is against the applicant but in order to get a fair trial the application for getting the handwriting expert opinion ought to have been allowed as it would not have prejudiced any of the parties, in case, the said application was allowed and handwriting expert opinion could have been obtained then it would have aided and assisted the court to decide the case in the correct perspective in that regard. He further submits that the court below did not have expertise to record a prima facie 3 NA528 No. 18186 of 2025 satisfaction that the signatures match and there is no reason for getting report of the handwriting expert particularly when the opinion, if any, could only be obtained from the handwriting expert who is an expert on the said subject. He seeks to rely upon the judgment of this Court in SCC Revision No. 136 of 2024 (Smt. Sunita Vs. Smt. Parmjeet Kaur) decided on 05.02.2025. Reliance has also been placed upon the judgment of Hon'ble Apex Court in Mrs. Kalyani Baskar vs Mrs. M. S. Sampoornam : 2007 (2) SCC 258 so as to contend that while deciding the said application the Magistrate has to see that fair opportunity is accorded to the accused to get the trial conducted in fair and an appropriate manner in that regard. He also submits that the consideration which weighed with the court below was since the matter was quite old and the proceedings under Section 251 and 313 Cr.P.C. had already undergone, thus, there was no reason to do so is not sustainable in the eyes of law.

7. Sri Jitendra Kumar Tripathi submits that though the applicant has no case at all but according to him, as per the instructions, he further does not delve into the said issue as according to him the matter be decided in an expeditious manner and the order be set aside while asking for a handwriting opinion in a time bound manner.

8. Learned State Law Officer, on the other hand, submits that once the opposite party no. 2 has no objection to the same then in these circumstances, he has nothing to add.

9. I have heard the submission so made across the bar and perused the record.

10. Apparently, post dishonor of the cheques in leading and the connected applications, a statutory demand notice came to be issued and the complaint was preferred and the applicant came to be summoned. An application for obtaining handwriting expert opinion was preferred which on contest came to be rejected. Since it is a specific stand of the counsel for the opposite party no. 2 as per the specific instructions received from his client that his client has no objection, in case, the handwriting expert opinion is obtained. Further, in the opinion of the Court, the grounds on which the application preferred by the applicant seeking opinion of the handwriting expert was rejected are not tenable particularly when delay can at best be one of the factors but it would not be the sole factor to deny the said request. As a matter of fact, in order to do complete justice and to provide fair opportunity 4 NA528 No. 18186 of 2025 to the accused in the background of the fact that already presumption is against him under Section 139 of the NI Act non-allowing of the said applications in a given case may result in violation of Article 21 of the Constitution of India. Thus, this Court without going further in the matter is deciding the case in the following terms:- (a) the order dated 07.04.2025 passed in Complaint Case No. 9370 of 2019 & 9316 of 2019 by Additional Court, Court No. 2, Agra is quashed; (b) matter stands remitted back to the court below requiring it to obtain the handwriting expert opinion; (c) for facilitation and early disposal, the court should fix a particular time for obtaining the said report and post receipt of the said report proceed to decide the matter expeditiously.

11. Learned counsel for the applicant as well as the counsel appearing for the opposite party no. 2 as per instructions submits that the parties shall not take unnecessary adjournments, thus, it is required that the court below shall not grant unnecessary adjournments and, in case, adjournments are granted that too in exceptional circumstances that too no beyond seven days at a stretch and the proceedings be decided as per the sub-section (3) of Section 143 of the NI Act. The parties are to submit the certified copy of the order before the court below by 19.09.2025.

12. Accordingly, interference is declined, the application stands disposed of. September 9, 2025 Rajesh (Vikas Budhwar,J.) RAJESH KUMAR High Court of Judicature at Allahabad

Smt. Sharda Sharma Alias Smt. Sharda Devi State of U.P. and Another Versus .....Applicant(s) .....Opposite Party(s) Counsel for Applicant(s) Counsel for Opposite Party(s) : Vinod Singh : G.A., Jitendra Kumar Tripathi Court No. - 75 HON'BLE VIKAS BUDHWAR, J.

1. Counter affidavit filed today is taken on record.

2. Heard Sri Vinod Singh, learned counsel for the applicant in the leading and connected applications as well as Sri S.P. Singh, learned State Law Officer for the State and Sri Jitendra Kumar Tripathi, learned counsel for the complainant in the leading and connected applications.

3. A statement has been made by counsel for the applicant that he does not propose to file any rejoinder affidavit and the applications be decided on the basis of the documents available on record.

4. The case of the applicant in the leading application is that a complaint stood preferred by the opposite party no. 2 against the applicant under Section 138 of the NI Act with an allegation that the applicant herein had 2 NA528 No. 18186 of 2025 drawn a cheque with respect to discharge of his liability dated 24.04.2019 bearing no. 0583500 which on presentation in the bank came to be dishonored on 14.05.2019 followed by a statutory demand notice dated 25.05.2019 and a complaint under Section 138 of the NI Act on 12.06.2019 pursuant whereto the applicant came to be summoned on 08.08.2019. The applicant contested the trial and the statement under Section 251 Cr.P.C. and 313 Cr.P.C. was recorded, however, the applicant had preferred an Application u/s 45 read with Section 39(1) of the Indian Evidence Act, 2023 for sending the cheques for expert opinion on 14.02.2025. The said application came to be rejected by the court below on 07.04.2025 in Complaint Case No. 9370 of 2019.

5. As regards the connected application is concerned, a complaint stood lodged by the opposite party no. 2 against the applicant under Section 138 of the NI Act with an allegation that the applicant herein had drawn a cheque with respect to discharge of his liability dated 25.04.2019 bearing no. 0583501 of an amount of Rs. 5,00,000/- which on presentation in the bank came to be dishonored on 02.05.2019 followed by a statutory demand notice dated 11.05.2019 and a complaint under Section 138 of the NI Act on 03.06.2019 pursuant whereto the applicant came to be summoned on

09.08.2019. The applicant contested the trial and the statement under Section 251 Cr.P.C. and 313 Cr.P.C. was recorded, however, the applicant had preferred an Application u/s 45 read with Section 39(1) of the Indian Evidence Act, 2023 for sending the cheques for handwriting expert opinion on 14.02.2025. The said application came to be rejected by the court below in Complaint Case No. 9316 of 2019.

6. Learned counsel for the applicant has submitted that the order dated

07.04.2025 passed by the court below in the leading and connected applications rejecting the application preferred by the applicant for getting the handwriting expert opinion cannot be sustained as the court below had not considered the crucial aspect of the matter that the presumption under Section 118 read with Section 139 of the NI Act is against the applicant but in order to get a fair trial the application for getting the handwriting expert opinion ought to have been allowed as it would not have prejudiced any of the parties, in case, the said application was allowed and handwriting expert opinion could have been obtained then it would have aided and assisted the court to decide the case in the correct perspective in that regard. He further submits that the court below did not have expertise to record a prima facie 3 NA528 No. 18186 of 2025 satisfaction that the signatures match and there is no reason for getting report of the handwriting expert particularly when the opinion, if any, could only be obtained from the handwriting expert who is an expert on the said subject. He seeks to rely upon the judgment of this Court in SCC Revision No. 136 of 2024 (Smt. Sunita Vs. Smt. Parmjeet Kaur) decided on 05.02.2025. Reliance has also been placed upon the judgment of Hon'ble Apex Court in Mrs. Kalyani Baskar vs Mrs. M. S. Sampoornam : 2007 (2) SCC 258 so as to contend that while deciding the said application the Magistrate has to see that fair opportunity is accorded to the accused to get the trial conducted in fair and an appropriate manner in that regard. He also submits that the consideration which weighed with the court below was since the matter was quite old and the proceedings under Section 251 and 313 Cr.P.C. had already undergone, thus, there was no reason to do so is not sustainable in the eyes of law.

7. Sri Jitendra Kumar Tripathi submits that though the applicant has no case at all but according to him, as per the instructions, he further does not delve into the said issue as according to him the matter be decided in an expeditious manner and the order be set aside while asking for a handwriting opinion in a time bound manner.

8. Learned State Law Officer, on the other hand, submits that once the opposite party no. 2 has no objection to the same then in these circumstances, he has nothing to add.

9. I have heard the submission so made across the bar and perused the record.

10. Apparently, post dishonor of the cheques in leading and the connected applications, a statutory demand notice came to be issued and the complaint was preferred and the applicant came to be summoned. An application for obtaining handwriting expert opinion was preferred which on contest came to be rejected. Since it is a specific stand of the counsel for the opposite party no. 2 as per the specific instructions received from his client that his client has no objection, in case, the handwriting expert opinion is obtained. Further, in the opinion of the Court, the grounds on which the application preferred by the applicant seeking opinion of the handwriting expert was rejected are not tenable particularly when delay can at best be one of the factors but it would not be the sole factor to deny the said request. As a matter of fact, in order to do complete justice and to provide fair opportunity 4 NA528 No. 18186 of 2025 to the accused in the background of the fact that already presumption is against him under Section 139 of the NI Act non-allowing of the said applications in a given case may result in violation of Article 21 of the Constitution of India. Thus, this Court without going further in the matter is deciding the case in the following terms:- (a) the order dated 07.04.2025 passed in Complaint Case No. 9370 of 2019 & 9316 of 2019 by Additional Court, Court No. 2, Agra is quashed; (b) matter stands remitted back to the court below requiring it to obtain the handwriting expert opinion; (c) for facilitation and early disposal, the court should fix a particular time for obtaining the said report and post receipt of the said report proceed to decide the matter expeditiously.

11. Learned counsel for the applicant as well as the counsel appearing for the opposite party no. 2 as per instructions submits that the parties shall not take unnecessary adjournments, thus, it is required that the court below shall not grant unnecessary adjournments and, in case, adjournments are granted that too in exceptional circumstances that too no beyond seven days at a stretch and the proceedings be decided as per the sub-section (3) of Section 143 of the NI Act. The parties are to submit the certified copy of the order before the court below by 19.09.2025.

12. Accordingly, interference is declined, the application stands disposed of. September 9, 2025 Rajesh (Vikas Budhwar,J.) RAJESH KUMAR High Court of Judicature at Allahabad