MUNNA KURESHI S/O MOHD. RAMJAN KURESHI, AGED ABOUT 40 YEARS, B/C KURESHI, R/O GODAWAS, IN FRONT OF KURESHI COMMUNITY HALL, MAKRANA, DISTT. NAGOUR. (RAJ.) Vs. ABDUL AZIZ S/O SHRI JAMALUDEEN, B/C CHOUHAN R/O MANGLANA ROAD, IN FRONT OF CANARA BANK, MAKRANA, TEHSIL MAKRANA, DISTT. NAGOUR. (RAJ.)

JUDGEMENT

(1.) This criminal misc. petition under Sec. 482 Crimial P.C. is filed by the petitioner being aggrieved with the order dated 07.12.2016 passed by the Judicial Magistrate, Makrana, Nagaur (hereinafter to be referred as 'the trial court'), in criminal case No. 444/2013 (67/2013), whereby the application preferred on behalf of the petitioner under Sec. 45 of the Indian Evidence Act with a prayer for sending the cheque in question and one agreement to the hand writing expert for expert opinion has been rejected.

(2.) The brief facts of the case are that the petitioner is facing trial for the offence punishable under Sec. 138 of the Negotiable Instrument Act before the trial court. The said proceedings were initiated at the instance of the respondent. In those proceedings, the statements of complainant and one other witness have already been recorded and the matter is fixed for recordings statement of petitioner under Sec. 313 Crimial P.C. At this stage, petitioner moved an application under Sec. 45 of the Indian Evidence Act with a prayer that the cheque in question as well as agreement be sent to the hand writing expert for his expert opinion. The trial court has rejected the said application of the petitioner observing that as per Sec. 20 of the Negotiable Instrument Act, bearer of cheque has every right to fill a blank cheque. The trial court while taking into consideration the judgment passed by this court rendered in Rajkumar Gupta Vs. State of Raj. & Anr reported in 2011(1) Western Law Cases, P.123 and the judgment of the Delhi High Court rendered in Manoj Sharma Vs. Anil Agrawal reported in 2012(4) CCC 175 (Delhi) has held that even if there is any difference in ink containing the signature and writing of the cheque then also it does not come in the definition of the material alteration. After observing this, the trial court has held that there is no need to send the cheque in question and agreement for expert opinion to hand writing expert.

(3.) Learned counsel for the petitioner has submitted that the petitioner has specifically stated in his application that the cheque in question as well as the agreement do not contain signature of the petitioner. It is further submitted that the petitioner has also specifically stated in the application that the writing in the cheque are also not of him. Learned counsel for the petitioner has submitted that when the petitioner has come with a specific case that the cheque as well as the agreement do not contain signature of him, it was obligatory upon the trial court to grant the request of the petitioner to send the cheque in question as well as the agreement to the hand writing expert for his expert opinion. In support of argument learned counsel for the petitioner placed reliance on decision of the Honourable Supreme court rendered in Kalyani Baskar Vs. M.S. Sampoornam reported in (2007) 2 Supreme Court Cases 258 and T. Nagappa Vs. Y.R. Murlidhar reported in 2008 AIR SCW 3349.