LAL, J. - (1.) THIS petition under Section 482 Cr. P. C. seeks quashing of the order dated 5. 7. 2006 passed by the learned Additional Chief Judicial Magistrate No. 10, Jaipur City, Jaipur whereby he has dismissed the application of the petitioner under Section 311 Cr. P. C. read with Sections 38 and 45 of the Indian Evidence Act, 1872.
(2.) THE relevant facts giving rise to this petition are that on the complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter called in short "act of 1881") a plea has been taken that the cheque in question which was dishonoured on 3. 9. 2004 with the endorsement that the account has been closed, was a blank cheque which has been filled in by the complainant himself and not by the accused-petitioner. THE accused-petitioner therefore, filed an application under Section 311 Cr. P. C. read with Sections 38 and 45 of the Indian Evidence Act, 1872 that the writing on the cheque may be got compared by the expert as the accused-petitioner has in his statement under Section 311 Cr. P. C. pleaded that except his signatures on the cheque as drawer other writing on the cheque was not made by him. THE said application was rejected by the learned Court below vide order dated 5. 7. 2006. Aggrieved by the said order the petitioner has moved this petition directly. I have heard learned counsel for the petitioner as well as learned counsel for the non-petitioner on the admission of this petition. Learned counsel for the petitioner has reiterated the aforesaid contention and has referred to the cases of Jai Prakash & Anr. vs. State of Rajasthan and Anr. (2004 (6) CRJ 98 and Malluram @ Maniram vs. Kashi Ram and Ors. (2006 (1) RCC 243. Learned counsel for the non-petitioner-complaint has stoutly opposed the aforesaid contention of the learned counsel for the petitioner and has referred to the cases of K. Bhaskaran vs. Sankaran Vaidhyan Balan and anr : 1999 (4) Crimes 212 (SC), Mangal Singh and Anr. vs. M/s. Khurana Chemicals : 2006 (2) R. C. C. 914, Subedar Sumer Singh vs. M/s. Amit Enterprises : 2003 (2) DCR 397 = RLW 2003 (4) Raj. 2638. I have considered the rival submissions made at the bar and have also perused the relevant documents placed before me as also the authorities cited at the bar.
(3.) IT would be pertinent to make a reference to the case of "subedar Sumer Singh" (supra) wherein the facts were identical to the facts of this case. In that case a blank cheque was given. The accused had admitted his signatures on the cheque. So, this Court held that burden to prove that the cheques were issued not for the debt or liability was on the accused. Reliance in this regard has been placed on earlier cases of K. N. Beena vs. Muniyappan : 2002 WLC (SC) (Cr.) 105 = RLW 2002 (1) SC 173, Sunil Kumar Tyagi vs. State of Rajasthan : 2002 WLC (Raj.) (UC) 378. This Court in the case of "mangal Singh" (supra) dismissed the revision petition and has upheld the order passed by the learned court below rejecting the application filed under Section 311 Cr. P. C. by the accused petitioner. Hon'ble Apex Court in the case of "k. Bhaskaran" (supra) has held that the cheque was drawn for consideration was to be presumed under Section 139 of the Act of 1881 and the burden lay on the drawer to rebut that presumption. ;