IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11th DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.3372/2013 BETWEEN:
B.K. Achanna, Aged about 47 years, S/o. late D.N.Kantha Rao, Cheluvanayakana Halli, Mulabaglu Post, Kolar – 567 201. …Petitioner (By Sri. Vijay Krishna Bhat M., Advocate) AND:
G.M. Shivananda, S/o. G.N. Malleshappa, Aged about 26 years, Residing behind Govt. Hospital, Koratagere Town, Tumkur – 572 137. ...Respondent (By Sri. Prakash M. Patil, Advocate) This Criminal petition is filed under Section 482 of Cr.P.C. praying to set aside the order dated 11.03.2013 passed by the Civil Judge and J.M.F.C., Koratagere in C.C.No.220/2009 rejecting the I.A. filed under Section 293 of Cr.P.C. read with Section 45 of the Evidence Act.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R The petitioner herein is facing charges under Section 138 of Negotiable Instruments Act. The prosecution is launched by the respondent alleging that the cheque issued by the petitioner for Rs.48,000/- was dishonored for insufficient funds.
2. During the trial, the accused set up a plea that he had borrowed a sum of Rs.48,000/- from the brother of the Complainant, Sri. Rurdramurthy and in that transaction he had given a blank cheque to the brother of the complainant and the same has been misused by the complainant to lay a claim for Rs.48,000/-. In support of this plea, the petitioner/accused sought to send the said cheque for handwriting examination by making an application under Section 293 of Cr.P.C. read with Section 45 of Indian Evidence Act. By order dated 11.03.2013, the said application has been rejected by relying on Section 20 of the Negotiable Instruments Act. The learned counsel for the petitioner submits that in the facts and circumstances of the case, Section 20 of the Negotiable Instruments Act has no application. The petitioner/accused having specifically taken up a plea that he had issued a blank cheque to the brother of the complainant, the burden is on the petitioner/accused to prove the said plea. The respondent/complainant in his evidence has categorically stated that the cheque in question was filled by petitioner/accused in his presence. In the light of the said contention, it was all the more necessary to determine the authenticity of handwriting found on the cheque and for the said purpose, examination of the said document by the expert was highly necessary and hence, rejection of the application, by the trial Court has resulted in denial of an opportunity to the petitioner to prove his case and the impugned order has already resulted in miscarriage of justice and hence, invokes jurisdiction of this Court under Section 482 of Cr.P.C. to quash the impugned order. In support of his contentions, the learned counsel has placed reliance on the decision of the Hon’ble Supreme Court in the case of T.Nagappa Vs. Y.R.Muralidhar reported in AIR 2008 SC 2010.
3. The learned counsel for the respondent has disputed the aforesaid contentions. He contends that the accused had admitted the issuance of cheque as well as his signature found on the said cheque and therefore, the trial Court was well justified in rejecting the application.
4. Having heard the parties and on going through the impugned order, I am of the view that the learned Magistrate has committed an error in dismissing the application. Having regard to the contentions urged by the petitioner/accused that the blank cheque in question was issued by him to the brother of the complainant, the burden of establishing the said contention was on the petitioner. The petitioner having chosen to prove the said contention by getting the said document examined through an expert, in my view, the petitioner ought to have been granted an opportunity to prove the said document. It is for the petitioner to adopt the mode available under law to prove the contention taken by him. As held by the Hon’ble Supreme Court in the above decision, “when a contention has been raised that the complainant has misused the cheque, even in a case where a presumption can be raised under Section 118(a) or 139 of the said Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. As the law places the burden on the accused, he must be given an opportunity to discharge it.”
5. Having regard to the defence set up by the petitioner, in my view, the document in question is necessary to be examined by the handwriting expert. Hence, the impugned order cannot be sustained.
6. Accordingly, the petition is allowed. Impugned order is set aside. Application filed by the petitioner under Section 293 of Cr.P.C. r/w Section 45 of Indian Evidence Act, is allowed. The trial Court shall send the disputed cheque for examination by the handwriting expert along with the admitted writings/signatures of the petitioner/accused calling for the opinion as per Section 45 of the Indian Evidence Act. Since, the matter is of the year 2009, the trial Court shall take necessary steps to dispose of the petition as expeditiously as possible.
Sd/- JUDGE SV