RAJESH KUMAR Vs. KAILASH CHAND

JUDGEMENT

(1.) Instant revision petition has been filed by the accusedpetitioner impugning order dtd. 27/2/2020, Annexure P-1, passed by learned Judicial Magistrate, Narnaul, whereby application filed by him for examination of a handwriting and fingerprint expert as a witness and for taking the specimen signature of the accused for comparison, has been rejected by the Trial Court.

(2.) Factual position is not in dispute. A complaint dtd. 21/1/2013, Annexure P-7, has been instituted by the complainant- respondent under Sec. 138 of the Negotiable Instruments Act, 1881 (for brevity "NI Act") alleging that he is running Munim Milk Diary, Dolhera and after collecting milk from adjacent villages, he used to supply it to the petitioner, who had installed a Chilling Plant. Petitioner was irregular in making payment and issued a cheque of Rs.8.00 lacs on 10/11/2012 drawn on HDFC Bank, Meham Chowk, Bhiwani for towards payment of the balance amount due. However, on presentation, the cheque was returned with the remark "insufficient funds". After preliminary evidence, petitioner was summoned and served with a notice of accusation. He pleaded innocence and claimed trial. On conclusion of after charge evidence, statement of the accused was recorded under Sec. 313 Cr.P.C. on 5/2/2020, Annexure P-5 in which he admitted the signature on the cheque, though he denied any transaction with the respondent and alleged that the respondent had misused the cheque. Petitioner filed an application dtd. 7/2/2020, Annexure P-4, under Sec. 315 Cr.P.C., which has been allowed and he was permitted to lead defence evidence. Application dtd. 20/2/2020, Annexure P-2, filed by him, for examination of a fingerprint and handwriting expert, has been opposed by the respondent by filing a response, Annexure P-3, and after contest, has been rejected by the Trial Court vide order impugned herein.

(3.) Counsel for the petitioner has urged that petitioner had given a blank signed cheque to the respondent's son, who was supplying milk, as security, but the cheque has been misused by the respondent. He asserts that the petitioner did not fill the body of the cheque and in order to establish this fact, he wants an expert to examine the cheque and has sought permission for giving his specimen writing for comparison. Reliance has been placed by him upon the judgment of Supreme Court in T.Nagappa Versus Y.R.Muralidhar AIR 2008 SC 2010 and judgments of this Court in Krishna Devi Shukla Versus K. S. Oil Limited 2023 (1) CRI.CC 691; M/s P.L. Forging Private Limited and another Versus M/s Bhushan Power and Steel Limited 2019 (1) NIJ 770; Puneet Kumar Versus Amandeep Singh 2018 (4) Law Herald 3416 and judgment of the Gujarat High Court in Abdul Rauf Abdul Rashid Shaikh Versus Shaikh Nuruddin Sarafuddin and another 2018 (1) Guj. LH 617 to contend that as burden is on the accused to establish his innocence, a fair opportunity must be granted to him for adducing evidence in rebuttal.