ISHWAR MAHADEEVAPPA HADIMANI Vs. SURESH RACHAPPA PATTEPUR

JUDGEMENT

(1.) Petitioner is facing criminal charge before the J. M. F. C, Ramdurga in C. C. No. 160/2007 (P. C. No. 35/2007) for an offence punishable u/Sec. 138 of the N. I. Act (Act for short). It is alleged that, the petitioner issued a cheque in favour of the respondent for a sum of Rs. 7,20,000/- on 23-3-2007, which on deposit in Bank was returned unpaid. A complaint was filed by the respondent u/Sec. 200 Cr. P. C. alleging that the petitioner has committed an offence u/ Sec. 138 of the Act. Complainant deposed as P. W. 1. Two other witnesses were examined as PWs. 2 and 3. The case was posted for examination of the accused u/Sec. 313 Cr. P. C. The petitioner, who is the accused, has filed an application for referring the cheque in question for an examination by an expert contending that he had issued a blank cheque and a bond paper to the complainant, who has written thereon the amount etc. according to his choice and the writings in the cheque and the bond are not in his handwriting i.e., the date, the figures, etc. which have been written in a different ink and hence it is very much necessary to send the cheque and the blank bond paper for the opinion of the hand-writing expert. According to the accused, the cheque and the bond paper have been mis-used by the complainant by entering a huge amount which he did not owe to the complainant. Objections were filed by the complainant to the application of the accused, wherein it was contended that the accused in order to return the hand loan has issued the cheque for Rs. 7,20,000/- in favour of the complainant and that the accused has also executed a promissory note and it is in order to discharge the hand loan, the cheque was issued, which was returned with an endorsement of the Bank "Insufficient funds." In the circumstances, it is not necessary to send the cheque and the bond paper for the opinion of the hand-writing expert. Learned Magistrate, for the reasons recorded by him, did not find merit in the application and dismissed the same. While dismissing the application it was observed that, the accused has admitted the signature on the cheque and hence naturally the burden is shifted on the accused to disprove the version of the complainant and by merely sending the cheque or the document to the hand-writing expert, no purpose will be served. After making a reference to the decisions of this Court and that of the Madras and Kerala High Courts, it was held that, it is not necessary to send for examination the cheque by a hand-writing expert, in view of admitting of the signature on the cheque.

(2.) The petitioner, questioned the said order by filing a Revision Petition in the Sessions Court. Learned Sessions Judge dismissed the Revision Petition by observing that, the accused has specifically admitted his signature on the cheque and hence it is not necessary to send the cheque for expert opinion since the burden shifts on the accused to disprove the contention of the complainant that he has advanced hand loan of Rs. 7,20,000/- and to discharge this debt, the accused issued the cheque.

(3.) This petition has been filed u/Sec. 482 Cr. P. C. to quash the said orders and to direct the Trial Court to accord permission to the accused to get the impugned cheque and the bond paper examined by an expert.