TAJINDER SINGH Vs. ANIL NAYYAR

JUDGEMENT

(1.) Petitioner being aggrieved and dissatisfied with order dated 18.5.2017, passed by learned Additional Chief Judicial Magistrate, Chamba, whereby application filed on behalf of the petitioner-accused under Sections 45 and 73 of the Indian Evidence Act, for comparison of admitted/specimen handwriting of accused and complainant with disputed handwriting on cheque by the hand writing expert, came to be dismissed, has approached this Court by way of instant proceedings, seeking therein direction for sending admitted /specimen handwriting of the accused and the complainant with the handwriting on the disputed instrument to the handwriting expert, after setting aside aforesaid order dated 18.5.2017.

(2.) Facts as emerges from the record are that respondentcomplainant filed a complaint under Section 138 of the Negotiable Instruments Act, in the Court of learned Chief Judicial Magistrate, Chamba, which came to be registered as Case No. 125/15, alleging therein that he had advanced a sum of Rs. 4.00 Lakh to the accused on his request on return basis. Accused with a view to discharge his aforesaid liability, issued a cheque bearing No. 393674 dated 2.10.2015, of Parvatiya Gramin Bank, Obri Sultanpur Branch, now renamed as Himachal Gramin Bank Obri, for a sum of Rs. 4.00 Lakh, against account No. 99228100080011, in favour of the complainant. However, the fact remains that the aforesaid cheque on its presentation to the Bank concerned, was dishonoured with the endorsement "not arranged for". Complainant, immediately after having received aforesaid memo from the Bank concerned, issued a legal notice dated 30.11.2015, Ext. CW-1/E, calling upon the accused to make payment good within a period of 15 days. However, the fact remains that accused despite having received aforesaid notice failed to make payment qua the cheque in question to the complainant, as such, the complainant was compelled to initiate proceedings under Section 138 of Negotiable Instruments Act in the competent Court of law. It also emerges from the record that legal notice dated 30.11.2015 was duly received by the petitioner-accused on 20.11.2016 as is evident from postal receipt, Ext. CW-1/D. Complainant, with a view to prove his claim, examined himself as CW-1 and reiterated the averments contained in the complaint filed by him under Section 138 of Negotiable Instruments Act. Accused, in his statement recorded under Section 313 CrPC, categorically denied issuance of cheque to the complainant and claimed that cheques No. 393668-393674 were lost. He further stated before the Court below that he and complainant used to sit together and perhaps complainant got hold of these cheques and misused the same. He admitted that cheque in question was dishonoured but this fact came to his notice later on. Accused, in his statement recorded under Section 313 though admitted averments with regard to receipt of legal notice, but categorically stated that he did not make payment as he had no liability towards the complainant. Accused, while claiming himself to be innocent, admitted his signatures on the cheque in question. Subsequently, petitioner-accused moved an application under Section 145(2) of the Negotiable Instruments Act, stating therein that complainant had removed cheques bearing No. 393668-393674 from the drawer of the accused and misused cheque No. 393674 by issuing it in his name by filling in amount of Rs. 4.00 Lakh in it, with his own hand. By way of aforesaid application, accused further averred that he had been searching his lost cheques but could not locate the same and came to know about removal of aforesaid cheques by the complainant, only after having received notice from Court, to face proceedings under Section 138 of the Negotiable Instruments Act. With the aforesaid averments in the application, accused prayed that he be allowed to contest the complaint having been filed by complainant on the defence stated in the application, referred to herein above. Aforesaid application was allowed by the Court below and accordingly, matter was ordered to be listed for examination of complainant's witnesses. Statement/ cross-examination of the complainant was recorded on 22.12.2016, whereafter, his evidence was closed.

(3.) On 1.2.2017, statement of accused came to be recorded under Section 313 CrPC, wherein he denied all the incriminating evidence against him and sought time to lead evidence in defence. It also emerges from the record that the accused, apart from examining himself also examined four other witnesses. On 28.3.2017, accused preferred an application under Sections 45 and 73 of Indian Evidence Act, for comparison of handwriting of complainant on disputed cheque with his admitted signatures and handwriting of complainant and accused.