2007 ALL MR (Cri) JOURNAL 182
(KARNATAKA HIGH COURT)
K. BHAKTHAVATSALA, J.
H. M. Satish Vs. B. N. Ashok
Criminal Revision No.1614 of 2006
8th February, 2007
Petitioner Counsel: Sri SANDEEP NAIK K
Respondent Counsel: Sri NARAYAN V. YAJI
Negotiable Instruments Act (1881) S.138 - Evidence Act (1872), S.45 - Dishonour of cheque - Accused claiming that he had lost two cheques and denied signature on the returned cheque with endorsement "insufficient funds - Best witness would be the concerned Bank Manager and not a hand writing expert. 1999(3) ALL MR 461 (S.C.) - Foll. (Para 6)
2. The learned Counsel appearing for the revision petitioner/complainant submitted that no evidence was adduced by the accused but he filed an application under Section 45 of the Indian Evidence Act, 1872 (in short, 'the Act') to refer the cheque in question viz., Ex.F-1 to handwriting expert for opinion whether the signature on the cheque is that of the accused or not. The complainant objected to the application. But the learned Magistrate allowed the application to refer the cheque in question to a handwriting expert.
3. The learned Counsel appearing for the respondent/accused submitted that the cheque in question is one of the two cheques he lost and his signature is forged and there is no illegality or infirmity in the impugned order.
4. The case of the complainant is that the respondent/accused approached the complainant and borrowed a sum of Rs.5,00,000/- in the month of December 2004 and issued a cheque bearing No.87784, dated 13.7.2005 drawn on Chickmagalur District Co-operative Central Bank, Banakal Branch. But, when the complainant presented the cheque, it was dishonoured and returned with an endorsement stating "funds insufficient." Thereafter, the complainant issued a legal notice calling upon the accused to pay the cheque amount. But the accused replied stating that he had lost two cheque leaves and the complainant has misused the same.
5. In support of the case of the complainant, he has got him examined as PW.1 and got marked Exs.P-1 to P-5. Statement of the accused was recorded under Section 313 of the Cr.P.C. Thereafter, the accused filed the application under Section 45 of the Act for referring the cheque in question for opinion of a handwriting expert. The accused has answered the question 5 of statement recorded under Section 313 of the Cr.P.C. stating that he and the complainant were partners in timber business and on account of rift between them, the accused has made use of blank cheque, and he has no defence evidence.
6. In the case of denial of signature of drawer of a cheque, the best witness would be the concerned Bank Manager and not a handwriting expert. The learned Magistrate has allowed the application solely on the ground that the accused would be put to greater hardship if the application were rejected. The learned Magistrate has not appreciated the facts on record while allowing the application. It is useful to refer to the decision of the Hon'ble Apex Court rendered in L. C. Goyal Vs. Mrs. Suresh Joshi and Others, AIR 1999 SC 2222 : [1999(3) ALL MR 461 (S.C.)], has observed in para 8 of its judgment as under that :
"........ the cheque bounced not on account of the fact that the signature of Ext.C.4 was not tallying with the specimen signature of the appellant kept with the Bank, but on account of insufficient funds. Had the signature on Ext. C.4 been different, the Bank would have returned the same with the remark that the signature on Ext. C.4 was not tallying with the appellant's specimen signature kept with the Bank. The memos Ext. C.6 and Ext. C.8 issued by the Bank clearly show that the signature of the appellant on Ext. C.4 was not objected to by the Bank, but the same was returned with the remark "insufficient funds". This circumstance shows that the signature of Ext.C.4 was that of the appellant."
8. In the result, the revision petition is allowed and the impugned order dated 21.7.2006 made in C.C. No.937 of 2005 on the file of Judicial Magistrate of First Class at Mudigere, is set aside, and the application filed by the accused under Section 45 of the Indian Evidence Act is dismissed. The learned Magistrate is directed to dispose of the criminal case, in accordance with law, within 3 months from the date of receipt of this order.