B K ACHANNA Vs. G M SHIVANANDA

JUDGEMENT

(1.) The petitioner herein is facing charges under Section 138 of Negotiable Instruments Act. The prosecution is launched by the respondent alleging that the cheque issued by the petitioner for Rs.48,000/- was dishonored for insufficient funds.

(2.) During the trial, the accused set up a plea that he had borrowed a sum of Rs.48,000/- from the brother of the Complainant, Sri. Rurdramurthy and in that transaction he had given a blank cheque to the brother of the complainant and the same has been misused by the complainant to lay a claim for Rs.48,000/-. In support of this plea, the petitioner/accused sought to send the said cheque for handwriting examination by making an application under Section 293 of Cr.P.C. read with Section 45 of Indian Evidence Act. By order dated 11.03.2013, the said application has been rejected by relying on Section 20 of the Negotiable Instruments Act. The learned counsel for the petitioner submits that in the facts and circumstances of the case, Section 20 of the Negotiable Instruments Act has no application. The petitioner/accused having specifically taken up a plea that he had issued a blank cheque to the brother of the complainant, the burden is on the petitioner/accused to prove the said plea. The respondent/complainant in his evidence has categorically stated that the cheque in question was filled by petitioner/accused in his presence. In the light of the said contention, it was all the more necessary to determine the authenticity of handwriting found on the cheque and for the said purpose, examination of the said document by the expert was highly necessary and hence, rejection of the application, by the trial Court has resulted in denial of an opportunity to the petitioner to prove his case and the impugned order has already resulted in miscarriage of justice and hence, invokes jurisdiction of this Court under Section 482 of Cr.P.C. to quash the impugned order. In support of his contentions, the learned counsel has placed reliance on the decision of the Hon'ble Supreme Court in the case of T.Nagappa Vs. Y.R.Muralidhar reported in AIR 2008 SC 2010.

(3.) The learned counsel for the respondent has disputed the aforesaid contentions. He contends that the accused had admitted the issuance of cheque as well as his signature found on the said cheque and therefore, the trial Court was well justified in rejecting the application.