SADHNA PANDEY Vs. PRAKASH CHAND JAIN

JUDGEMENT

(1.) The applicant accused has preferred this revision under Section 397 of Cr.P.C. being aggrieved by the order dated 17.11.2011 passed by 7th Additional District Judge, Bhopal allowing the revision of the respondent and reversing the order dated 7.7.2011 passed by the Judicial Magistrate-First Class, Bhopal in Criminal Case No. 18427/2008, instituted by the respondent to prosecute the applicant under Section 138 of Negotiable Instruments Act (in short "the Act"), allowing his application filed under Section 45 of Evidence Act to get examine her alleged signature on the cheque in dispute from the hand writing expert and dismissed such application. The facts giving rise to this revision in short are that the applicant herein to pay the consideration had given the impugned cheque to the respondent. The respondent deposited the same with his Banker for collection but was returned to him with the memo of his Banker with endorsement that same has been dishonoured due to insufficient fund, on which after complying the technical provisions of Section 138 and other related provisions of the Act the respondent had filed the impugned complaint against the applicant, in which the cognizance of Section 138 of the Act was taken against the applicant and after his appearance the plea was recorded, he abjured the guilt, on which the trial was passed. After recording the evidence of the respondent the impugned application of Section 45 of Evidence Act was filed on behalf of the applicant with a prayer to get examine her signature on the cheque through handwriting expert. Such application was opposed by the respondents saying that such defence being not taken at any earlier stage either in response of demand notice or in the cross-examination of respondent's witnesses, is not available to the applicant. Such prayer is also opposed on the ground that cheque was not dishonoured by the Banker of the applicant on such ground of difference of the signature but the same was dishonoured only on the ground of insufficient fund, so the examination of signature of the applicant on the cheque from the hand writing expert is neither necessary nor could be permitted. On consideration the impugned application was allowed by the Trial Court and applicant was permitted to get examine her signature of the cheque from the handwriting expert, on which the respondent had filed the criminal revision before the Sessions Court. After extending the opportunity of hearing to the parties on consideration vide impugned order dated 17.11.2011 by holding that cheque being dishonoured only on the ground of insufficiency of fund and not on difference of the signature of the applicant, the examination of such cheque from handwriting expert is not necessary the revision was allowed and by setting aside the order of the Trial Court the impugned application of the applicant was dismissed on which the applicant has come to this Court with a prayer to set aside the order of the Revisional Court by restoring the order of Trial Court.

(2.) The applicant's Counsel after taking me through the revision memo along with the impugned order argued that although the impugned cheque was dishonoured on the ground of insufficiency of fund and not on difference of the signature of the applicant but the applicant has a right to take all the available defence. In such premises the impugned application to get examine the signature from the expert was rightly allowed by the Trial Court and no error of jurisdiction was committed. He further said that in any case the order of the Trial Court could not be interfered by the Appellate Court under the revisional jurisdiction because the same was passed by the Trial Court under its vested discretionary jurisdiction. In continuation, he said that if she is not permitted to examine the cheque from expert then she would be deprived to defend the matter on material and important defence regarding difference of the signature on the cheque and prayed to set aside the impugned order of the Revisional Court by restoring the order of the Trial Court by admitting and allowing this revision.

(3.) Responding the aforesaid arguments by justifying the impugned order of the Revisional Court Mr. Shobhit Aditya, learned Counsel for the respondent said that the same being passed on proper appreciation of the available factual matrix and existing legal position is in conformity with law, it does not require any interference at this stage. In continuation he said that on taking into consideration the provision of presumption enumerated under Sections 118, 119 and 120 of the Act the aforesaid defence is not available to the applicant. He also said that the impugned cheque was dishonoured by the Banker of the applicant on the ground of insufficiency of fund then other ground raised by the applicant regarding difference of signature on the cheque is not required any consideration, as the impugned cheque was neither dishonoured on such ground nor the case of the respondent is based on such ground therefore, such defence is not available to the applicant and in such premises, the applicant could not be permitted to get examine the signature of the applicant on the cheque from hand writing expert. In support of such contention he also places his reliance on the decision of the Apex Court in the matter of L.C. Goyal v. Mrs. Suresh Joshi and Ors., 1999 AIR(SC) 2222 so also on the case law of Karnataka High Court in the matter of H.M. Satish v. B.N. Ashok, 2007 CrLJ 2312and the case law of Andhra Pradesh High Court in the matter of Manda Syamsundra v. Kurella Anjaneyachari & Anr., 2008 4 BankCas 673and prayed for dismissal of this revision.