DEVINDER SINGH Vs. MEHAR CHAND

JUDGEMENT

(1.) During the pendency of the apposite complaint instituted before the learned Judicial Magistrate, Gohar, Mandi, District Mandi, an affidavit borne in Ext.DW-1/A was tendered in evidence by the defendant-accused also one, Ghanshyam Singh who swore it, testified in consonance with the recitals borne therein. With recitals occurring therein, of one Ghanshyam Singh who swore Ext.DW-1/A, holding possession, of, the dishonoured negotiable instrument(s), thereupon through an application cast under the provisions of Section 319 Cr.P.C., provision(s) whereof stand extracted hereinafter, it was canvassed, that, hence with the author of Ext.DW-1/A admitting his guilt in issuing the disputed dishonoured negotiable instrument(s), thereupon the purported incriminatory, role, of the respondent-accused being exculpated, whereas the impleadment of Ghanshayam Singh in the array of accused being imperative.

(2.) However, a closest reading of the recitals borne in Ext.DW-1/A make a visible disclosure of its author being delivered, the disputed dishonoured negotiable instrument(s), by one Devender Singh the petitioneraccused herein, merely, as a security in respect of sums of money borrowed by him from the author of Ext.DW-1/A, whereafter the author of Ext.DW-1/A narrates therein qua his further handing over the disputed dishonoured negotiable instrument(s), to, the complainant, merely as a security for sums of money borrowed by him from the complainant. Significantly thereupon the counsel for the petitioner accused, submits that hence with its evidently displaying qua non occurrence of any financial transaction(s) inter se the respondent and the complainant, there was obviously, no occasion, for the accused transmitting the disputed dishonoured negotiable instruments vis-à-vis the complainant, rather he contends that the author of Ext.DW-1/A warrants his being added as an accused in the instant complaint. The aforesaid submission warrants rejection, for the reason(s) (a) with a disclosure occurring in Ext.DW-1/A that its author receiving absolutely blank cheques, effect(s) whereof is that the dishonoured negotiable instrument(s), never during the period they purportedly remained in possession of the author of Ext.DW-1/A, hence holding the signatures of the respondent-accused. The further consequence thereof is that the scribing(s) therein of the signatures of the respondent-accused hence occurring only upon the accused obviously holding its possession besides effect thereof, is, of the accused also preceding therewith scribing thereon the details of amounts borne therein, especially, when there is no best evidence comprised in the report of the handwriting expert qua the signatures borne therein and scribing(s) of details of sums of money borne therein, being not authored by the respondent-accused. Prima facie hence the respondent accused is to be concluded to author all writings occurring therein. In aftermath, prima facie the recitals borne in Ext.DW-1/A stand falsified rendering the adding of Ghanshyam Singh in the array of accused, to be unnecessary.

(3.) Furthermore, the prayer made in the application cast under the provisions of Section 319 Cr.P.C, stood, aptly rejected by the learned trial Magistrate, given the special procedural mechanism contemplated in Section 138 of the Negotiable Instrument Act, (hereinafter referred to as the Act), in respect of trial of a complaint instituted under the "Act" before the Magistrate concerned, provisions whereof stand extracted hereinafter:-