JAIPAL SINGH RANA Vs. SWARAJ PAL SINGH

JUDGEMENT

(1.) (OPEN COURT)An interesting question arises in this petition under Section 482 of the Code of criminal Procedure, 1973 ('crpc')concerning the scope of the powers of a metropolitan Magistrate ('mm'), trying a complaint case under Section 138 of the negotiable Instruments Act, 1881 ('ni Act')to ask for the opinion of the Central Forensic science Laboratory ('cfsl') on the handwriting on the cheques in question despite an application filed by the complainant for the same relief having been dismissed earlier by the learned MM. Background facts

(2.) THE brief facts to filing of this petition are that a complaint being Criminal Case No. 429/1 was filed by the petitioner against the respondent under Section 138 NI Act in the court of learned MM on 18th March, 2002 with regard to the dishonour of two cheques: cheque no. 315106 dated 20th August, 2001 for a sum of Rs. 20 lakhs and cheque no. 315108 dated 28th December, 2001 for a sum of Rs. 32 lakhs. The allegation in the complaint was that the respondent swaraj Pal Singh had issued the aforementioned cheques in favour of the complainant towards discharge of an admitted liability. Both cheques were, on presentation to the bank for payment, dishonoured wjth the remarks "insufficient funds. " After issuing notices demanding payment, the petitioner filed the aforementioned complaint.

(3.) ON 17th September 2002 the learned mm passed a summoning order. The application by the respondent recalling the summoning order was dismissed by the learned MM an order dated 9th February 2004. One of the contentions raised by the respondent in support of prayer for recalling the summoning order was that the cheques in question were entrusted to the complainant as a part of the business transactions between the parties and were not meant to be encashed. It was stated that the cheques had been tampered with, filled by the complainant or his associates to make alteration in the amount and the dates without the consent of the drawer i. e. respondent. While rejecting this contention the learned MM in the said order dated 9th february, 2004 observed as under: