H.R.PANWAR, J. - (1.) THIS criminal misc. petition under Sec. 482 CrPC is directed against the order dated 28.6.2005 passed by Judicial Magistrate, Pali (for short 'the Trial Court' hereinafter), whereby the Trial Court allowed the application filed by non-petitioners No. 2 and 3 seeking to get the documents Ex.P/3 and Ex.P/5 examined by handwriting expert through Forensic Science Laboratory.
(2.) I have heard learned counsel for the parties. Carefully gone through the order impugned. It is contended by learned counsel for the petitioner that the Trial Court passed the order directing to examine Ex.P/3 and Ex.P/5 by handwriting expert on the ground that such a direction has been issued by learned Sessions Judge while deciding the revision filed by non-petitioner No. 3 being Criminal Revision No. 31 of 2004. According to counsel for the petitioner, learned Sessions Judge has not given such a direction to direct for documents to be examined by the handwriting expert but it is only that the matter was remanded for consideration at the stage of defence if the accused non-petitioner prima facie makes out a case on the basis of private handwriting expert report or on affidavit etc. Learned counsel for the petitioner submits that in the instant case, neither the issuance of cheque nor the filling of cheque has been denied by accused non-petitioners and Ex.P/3 and Ex.P/5 are only to photo copy of an envelope which has no relevancy to decide the controversy. Even otherwise, according to counsel for the petitioner when the issuance of cheque, signature thereon and handwriting on the body of cheque are not disputed by the ac cused non-petitioners, there is hardly necessity to examine the envelope or the handwriting thereon. Learned counsel appearing for the accused non-petitioners has not disputed this fact that issuance of cheque in question, handwriting and signature thereon of course have not been disputed, but the handwriting on the envelope and the paying-in-slip have been disputed and therefore, the Court below was justified in sending the Ex.P/3 and Ex.P/5 the envelope and Counsel for the petitioner has relied on two decisions of this Court in Sunil Kumar Tyagi vs. Stale of Rajasthan & Am., 2002 (1) R.Cr.D. 377 (Raj.) and Mangal Singh & Am. vs. Mis. Khurana Chemicals, 2006 (2) R.Cr.D. 396 (Raj.). I have given my thoughtful consideration to the rival submissions made by the counsel for the parties. Carefully gone through the order of learned Sessions Judge, Pali in Criminal Revision No. 31 of 2004 as also the order passed by the Trial Court. Ex.P/3 is an envelope and Ex.P/5 is a Paying-in-slip depositing the cheque which is subject matter of the instant criminal case with Marwar Gramin Bank. As to how these Courts but when the issuance of cheque, handwriting, amount written and signature thereon and the cheque on being pre sented to bank was dishonoured and returned unpaid on the ground of insufficient amount to the credit of the accused non petitioner's account, have not been disputed, in the circumstances therefore, in my view, there was hardly any occasion for the Trial Court to have directed to send the envelope and paying-in-slip depositing cheque with the bank for handwriting expert opinion. It is not necessary that the person in whose favour the cheque is issued himself has to deposit the cheque with the bank by filling the paying-in-slip by his handwriting, it can be by anyone, may be the employee of the holder of the cheque in due course. What is material is as to whether the accused non-petitioners have issued the cheque in favour of the petitioner for the amount mentioned therein duly signed by the non-petitioner and whether the cheque has been issued for the discharge, in whole or in part, of any debt or other liability. In Sunil Kumar Tyagi vs. State of Rajasthan and Anr. (supra) while considering the provisions of Sec. 118 of the Negotiable Instruments Act, 1881 which provides the presumptions as to negotiable instruments, this Court held that once the execution of a cheque is admitted, presumptions under Sec. 118 of the Act arises, until the contrary is proved. Sec. 118 of the Negotiable Instruments Act, 1881 (for short 'the Act' hereinafter) provides that until the contrary is proved, the following presumptions shall be made: (a) of consideration. - that every negotiable instrument bearing a date was made or drawn on such date; (b) as to date.- that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance. - that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer. -that every transfer of a negotiable instrument was made before its maturity; (e) as to order of endorsement. -that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamps. -that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder of due course. -that the holder of a negotiable instrument is a holder in due course;
(3.) PROVIDED that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. In the instant case, the controversy stands fully covered by the provisions of Sec. 118 of the Act when the issuance of cheque, signature thereon filling up of the cheque and amount written thereon, have not been disputed by the accused non-petitioners.;