O P SHARMA Vs. ASHOK BOHARA

JUDGEMENT

(1.) The petitioner is aggrieved by the order dated 09.11.2009 passed by the Additional Chief Judicial Magistrate No. 7, Jaipur City. Jaipur. whereby the learned Magistrate has declined the petitioner's application for sending the cheque in question to the FSL for its opinion.

(2.) The brief facts of the case are that Ashok Bohara, the respondent, had filed a criminal complaint against the petitioner for offence under Section 138 of the Negotiable Instruments Act ( 'the Act', for short). According to the complainant-respondent, on 15.04.2006, the petitioner had borrowed Rs. 20,000/- and subsequently, on the same day, he borrowed Rs. 15,000/-. While borrowing Rs. 20,000/-, he had given him a cheque for the same amount. However, subsequently when he borrowed Rs. 15,000/- the petitioner changed the amount in the said cheque from Rs. 20,000/- to Rs. 35,000/-. Moreover, the petitioner assured the complainant that upon depositing the cheque would be encashed by the bank. On 29.08.2006, the complainant submitted the cheque for encashment. However, the same was dishonoured. Therefore, again on 05.10.2006, the complainant submitted the cheque. But, the cheque was returned with the remark that "there is insufficient fund". Since the petitioner did not repay the amount mentioned in the cheque, the complainant filed the complaint under Section 138 of the Act. During, the examination of the complainant, as a witness, the petitioner moved an application for sending the cheque in question to the FSL for its opinion. According to the petitioner, he claimed that the signatures on the cheque are not his. Moreover and most importantly, the signature made under the over-writing, carried out in cheque, is certainly not his. However, vide order dated 09.11.2004, the application has been dismissed. Hence, this petition before this Court.

(3.) Mr. Ghanshyam S. Sisodia, the learned counsel for the petitioner, has vehemently contended that the petitioner's case is that the signature made under the over-writing in the amount mentioned in the cheque is not his. Therefore, the opinion of the FSL is essential. Secondly, since the petitioner had borrowed only Rs. 20,000/-, he is willing to compromise and pay the said amount to the complainant. However, the complainant is not ready to accept the said amount. Thirdly. relying upon the cases of Kalyani Baskar v. M.S. Sampornam, and T. Nagappa v. Y.R. Muralidhar, the learned counsel has contended that since the burden is placed on the accused to rebut the presumption under the Act, an opportunity needs to be given to the petitioner to adduce the evidence to prove the fact that the signature under the over-writing is not his. The learned counsel has also contended that the accused has a right of fair trial under Article 21 of the Constitution of India. Therefore,s the learned Magistrate has erred in dismissing the application of the petitioner on the ground that the complainant is yet to he cross-examined and the application has been filed in order to delay the proceedings.