Court No. - 72
Case :- MATTERS UNDER ARTICLE 227 No. - 6125 of 2019 Petitioner :- Arvind Gupta Respondent :- Vijay Rai Counsel for Petitioner :- Dhiraj Srivastava Counsel for Respondent :- Devesh Kumar
Hon'ble Rajiv Joshi,J.
Heard Shri B.K. Srivastava, learned Senior Counsel assisted by Shri Dhiraj Srivastava, learned counsel for the petitioner and Shri Devesh Kumar, learned counsel for the respondent.
Present petition under Article 227 of the Constitution of India has been filed challenging the impugned order dated 30.7.2019 passed by Additional Session Judge, Court No.4, Jhansi, whereby criminal revision filed by the petitioner was dismissed affirming the order dated 18.2.2019 passed by Additional Chief Judicial Magistrate, Court No.2, Jhansi, rejecting the application of the accused-petitioner to summon the handwriting and fingerprint expert for ascertaining the genuineness of the cheque and letter pad.
The relevant facts for the purposes of the present case are that the petitioner is the proprietor of a Firm, namely K.B. Enterprises, which is involved in the business of selling and purchasing of old J.C.B. machines as well as scrap materials and is functioning since 2003. The respondent/complainant filed a complaint No.3510/2016 on 18.10.2016 and Complaint No.3243/2016 on 17.8.2016 for dishonouring of the three cheques bearing Nos.722039, 722040 and 742041 for Rs.35,00,000/-, Rs.10,00,000/- and Rs.20,00,000/- respectively vide cheques dated 15.6.2016, 15.6.2016 and 1.6.2016 respectively. The complaint was filed under Section 138 of N.I. Act for dishonouring of the cheque after serving the notice of demand to the accused-petitioner.
The petitioner was summoned in both the cases by the magistrate for facing the trial and thereafter, he was released on bail. Subsequently, during trial the petitioner moved two applications, one under Section 311, Cr.P.C. for summoning of scribe of the first information report lodged by the police station Karol Bagh, New Delhi on 11.2.2019 and another application dated 11.5.2019, under Section 311A, Cr.P.C. for summoning the handwriting and fingerprint expert to ascertain the writing and signature on the letter pad as well as on the cheque. The magistrate vide impugned order dated 18.2.2019 allowed the application filed under Section 311, Cr.P.C. and rejected the application dated 11.5.2019 filed under Section 311A, Cr.P.C. and the request of the petitioner regarding calling of the report of the handwriting expert has been refused.
Feeling aggrieved by the order rejecting the application for calling the report of the handwriting expert, the petitioner filed Revision No.34 of 2019 before the Session Judge, which later on transferred before the Additional Session Judge, Court No.4, Jhansi, who too vide impugned order dated 30.7.2019 rejected the revision filed by the petitioner. Both these orders passed by the magistrate as well as revisional court are impugned in the present petition.
The contention of learned counsel for the petitioner is that duly signed cheques were lost along with the bag on 14.5.2014 and in this regard, first information report was lodged on the same day at police station Karol Bagh, New Delhi and simultaneously bank was also informed in writing for stopping of the payment, therefore, the petitioner has rightly filed the application for expert opinion and for summoning the handwriting expert, which has not been considered by both the courts below in its true spirit and therefore, the order impugned is liable to be quashed.
On the other hand learned counsel for the respondent contends that the application has only been moved in order to delay the proceedings. There is no necessity for summoning the report from the handwriting expert as his signature on the cheque has been admitted by the accused-petitioner.
I have considered the rival submissions so raised by learned counsel for the parties and perused the record. The evidence of the complainant had already been concluded and the statement of the accused-petitioner was recorded under Section 313, Cr.P.C. in which he clearly stated about the stolen cheques were misused by the complainant. The complainant has denied the contents of the letter pad of K.B. Enterprises and contends that the letter pad is forged. First information report has already been lodged for the missing cheques as well as for stopping of the payment by the concerned bank. Said fact can be considered at the time of hearing of the trial as the evidence in this regard has been adduced by the accused-petitioner.
I do not find any good ground for interfering with the order impugned at this interlocutory stage as the case is fixed for final hearing. However, considering the facts and circumstances of the present case, liberty is granted to the petitioner, in case trial is decided against him, he can raise the said ground before the appellate court.
The petition lacks merit and is, accordingly, dismissed.
No order as to costs.
Order Date :- 26.8.2019 T. Sinha