DNYANADEV BALU BANE Vs. SIDDAPPA LAGAMANNA GAYAGOL

JUDGEMENT

(1.) PETITIONER is the accused facing charge for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') in C.C. No. 651/2010. He seeks an order to direct the impugned cheque to be referred to an hand -writing expert for his opinion about the alleged insertion of a "Zero" in the numerical appearing in the cheque. Such request made by him through an application before the trial court was rejected by order dated 11.07.2013. Assailing which, he. filed Criminal Revision Petition No. 365/2013, which the learned Judge of the revisional court has rejected, confirming the order of the trial court. Against both these orders, he is in action under Section 482 of Cr.P.C. From what the learned counsel has urged, it could be seen the respondent - -Siddappa Lagamanna Gayagol initiated prosecution against the petitioner for an offence punishable under Section 138 of the Act on the ground that he had borrowed Rs. 3,00,000/ - and in discharge of that liability, issued the impugned cheque, which on presentation was dishonoured, necessitating issuance of statutory notice. The accused received notice, but failed to comply. Learned jurisdictional Magistrate has taken cognizance and summoned the accused, who denied the accusation and a plea of defence was put up that he had borrowed only Rs. 30,000/ - and not Rs. 3,00,000/ -. The complainant had tampered the cheque by adding one zero in the numerical appearing in the cheque.

(2.) IN the trial that ensued, the complainant had tendered evidence and accused appears to have cross -examined him. The evidence is complete. At this stage, he filed an application under Section 73 of the Indian Evidence Act requesting the Court to refer the cheque for an hand -writing expert's opinion about the alleged insertion of a 'zero'.

(3.) LEARNED counsel submits, which the appellate court has also noticed, that the last 'zero' added to make Rs. 3,00,000/ - is in different ink. Therefore, manifestly there was insertion of a 'zero', which amounts to tampering of the cheque. The expert's opinion would have clinched the issue and that would have added strength to his defence. Non -referring of the cheque to hand -writing expert's opinion has jeopardized his valid defence.