MOHAMMED HANIF Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By way of filing the instant Misc. Petition under Sec. 482 Cr.P.C. petitioner has challenged the order dtd. 25/8/2023 passed by the learned Session Judge, Jalore, in Criminal Revision Case No. 106/2023 as well as impugned order dtd. 5/5/2023 passed by the learned Additional Chief Judicial Magistrate No. 1, Jalore in Criminal Case No. 1117/2018 by which the learned Additional Chief Judicial Magistrate has dismissed the application under Sec. 243 of the Cr.P.C. r/w Ss. 45, 47 and 73 of the Evidence Act, 1872 filed by the petitioner.

(2.) The respondent No. 2 filed a complaint under Sec. 138 of the Negotiable Instrument Act, 1881, before the learned Trial Court, alleging that he and the petitioner are relatives. Looking at the petitioner's necessity for money for the marriage of his son and daughter, respondent No. 2 lent him a sum of Rs.1,00,000.00 on 9/4/2018. At the time of borrowing, the petitioner executed an agreement in favor of respondent No. 2, assuring repayment within six months. When respondent No. 2 demanded repayment, the petitioner issued a cheque bearing No. 076068 for Rs.1,00,000.00, drawn on ICICI Bank, Jalore Branch, and instructed respondent No. 2 to present it on 9/10/2018. However, the cheque was dishonored on presentation with the endorsement "A/ c is Dormant." A legal notice of demand was served on 17/10/2018, but the petitioner failed to make the payment, leading to the filing of a criminal complaint.

(3.) The learned Counsel for the petitioner submitted that the learned Courts below have committed serious errors of law and fact in passing the impugned orders dtd. 5/5/2023 and 25/8/2023. It is an admitted fact on record that the petitioner had handed over a blank cheque with only his signature, and the details were later filled in by respondent No. 2 or his representative. During cross-examination, PW-1 Mohammed Ibrahim and PW-2 Liyakat Ali claimed that the details on cheque (Exh. -P/2) were filled by the petitioner. However, in his statement under Sec. 313 of Cr.P.C., the petitioner categorically stated that although he had borrowed Rs.50,000.00 from respondent No. 2, the amount was repaid within four months. The petitioner further contended that the cheque in question was given as security and later misused by respondent No. 2. Given these facts, a handwriting expert's opinion is crucial to determine the authenticity of the handwriting on the cheque. However, the learned Courts below failed to exercise a judicious approach while rejecting the petitioner's application. It is submitted that the mere dishonour of a security cheque does not constitute an offense under the Negotiable Instruments Act. The learned Trial Court dismissed the application solely based on the presumption that the petitioner had issued a signed cheque, without considering the circumstances under which it was handed over.