IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5857/2016 BETWEEN:
ANTHONY FRANCIS S/O AROGYA SWAMY AGED ABOUT 54 YEARS R/O HASSAN ROAD RIGHT SIDE 2ND CROSS ARSIKERE TOWN – 573 103 (BY SRI LOKESH MURTHY G, ADVOCATE) AND:
B.SHIVAMURTHY S/O D.BASAVAIAH MAJOR R/O RAILWAY QUARTERS 1ST CROSS, CHURCH ROAD ARSIKERE – 573 103 WORKING AS RAILWAY TICKET COLLECTOR AT KADUR RAILWAY STATION (BY SRI R.B.DESHPANDE, ADVOCATE) … PETITIONER … RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 25.07.2016 ON THE APPLICATION FILED BY THE ACCUSED U/S 45 OF THE EVIDENCE ACT IN C.C.NO.181/2015 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, ARSIKERE, WHICH IS MARKED AS ANNEXURE – C.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R 1. Petitioner was the complainant before the trial court. He sought action against the respondent for dishonor of the Cheque issued by him under Section 138 of the Negotiable Instruments Act.
2. At the stage of arguments, the respondent/accused moved an application under Section 45 of the Evidence Act seeking to refer the Cheque marked as Ex.P1 and alleged signature on Ex.P1(a) and also signature found on the promissory note marked as Ex.P8 for scientific investigation. By the impugned order dated 25.07.2016, the learned Magistrate allowed the said application and referred the admitted and disputed signatures of the accused to handwriting experts.
3. Learned counsel for the petitioner by referring to the defence set up by the respondent/accused in his evidence (DW.1) pointed out that the accused has not disputed his signature on the Cheque. On the other hand, the contention of the respondent/accused before the trial court was that the Cheques in question were given by him to the wife of one Ananth Singh in respect of a chit transaction. The accused did not set up any plea of forgery of the signature on the Cheque. Under the said circumstances, the learned Magistrate has committed a serious error in referring the signatures for analysis by handwriting experts. The opinion of the handwriting expert has no bearing whatsoever on the defence set up by the accused, and hence, the impugned order is liable to be set aside by this Court.
4. Learned counsel appearing for the respondent would submit that in the cross-examination, the respondent/accused has taken up a specific plea that he had handed over ten Cheques to Ananth Singh and amongst them only two were signed. Under the said circumstances, the respondent was entitled to take up the plea of forgery and get the same substantiated through handwriting expert under Section 45 of the Evidence Act and there is no illegality in the order passed by the learned Magistrate.
5. Considered the rival submissions and perused the records.
6. On going through the copy of the evidence of accused (DW1), it is seen that the respondent/accused has taken up a specific plea in his evidence that in respect of the chit transaction, he had initially given two cheques and thereafter eight signed cheques to the wife of Ananth Singh. In the cross-examination, he has taken up an inconsistent stand that he has handed over ten cheques to Ananth Singh himself and amongst them only two cheques were signed and the remaining eight cheques were unsigned. Contrary to this stand, in the application filed under Section 45 of the Evidence Act, the respondent has come up with a story that the complainant has forged his signature on the Cheque.
This defence was not taken up by him at any stage of cross-examination of DW1. On the other hand, the specific defence of the respondent all throughout is that the cheques were handed over by him in respect of a chit transaction either to Ananth Singh or wife. Under the said circumstances, the accused could substantiate his defence only by examining the aforesaid Ananth Singh or his wife and not by sending the cheque for examination by a handwriting expert. That apart having regard to the inconsistent stand taken by the accused at every stage of the proceedings, in my view, the learned Magistrate ought to have considered the matter from the perspective of the pleadings and the defence set up by the parties, instead of permitting the respondent to get the signature on the cheque examined by a handwriting expert. The said evidence is totally unconnected and extraneous to the dispute in question. In that view of the matter, the impugned order passed by the learned Magistrate cannot be sustained.
Accordingly, the petition is allowed. The impugned order dated 25.07.2016 passed by the Court of Senior Civil Judge & JMFC, Arsikere, in C.C.No.181/2015 is quashed.
Sd/- JUDGE hkh.