Manubhai Narottamdas Surti

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12944 of 2011 For Approval and Signature:

HONOURABLE MS JUSTICE SONIA GOKANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

Whether this case involves a substantial question of law as 4 to the interpretation of the constitution of India, 1950 or any order made thereunder ?

5 Whether it is to be circulated to the civil judge ?

========================================================= AMISHABEN C TAILOR, PROPREITOR OF ­ Petitioner(s) Versus MANUBHAI NAROTTAMDAS SURTI ­ Respondent(s) ========================================================= Appearance :

MR NITIN M AMIN for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MS JUSTICE SONIA GOKANI Date :   07/05/2012 CAV JUDGMENT

1. The petitioner herein is the original defendant who has preferred an application Exh. 39 inter alia urging the Court to refer the cheque to the hand­writing expert and the Court after hearing both the sides denied the request in a suit for recovery on the basis of dishonoured cheque.

2. Regular Civil Suit No. 98 of 2007 has been preferred by the respondents herein on the ground that the two cheques were given by the present petitioner (original defendant) on dated 11th April 2007 and one of such cheques being that the cheque of Rs 41,000/­ was cleared but the other cheque of Rs 1,50,000/­ was dishonoured on account of insufficiency of funds.

2.1 Stand of petitioners­defendants from the beginning is that the cheque of Rs 1,50,000/­ was issued by her father­in law without her knowledge and behind her back for the purpose of security and except the signature in the cheque, the rest of the details are not in her hand writings but are those of respondent. It is also contended that both the cheques have been illegally removed without the knowledge of the petitioner and since body writing of the cheque are of the respondent this defence requires scientific scrutiny. It is also the case of the petitioner that inspite of receiving full amount from the father ­in­law of the petitioner, the respondent did not return the cheque given by way of security and instead filed the suit misusing the process of law after a lapse of nearly five years.

3. Under these circumstances, when an application was moved Exh. 39 under XXVI read with Section 151 of Code of Criminal Procedure before the trial Court to allow the cheque to be referred to the Forensic Science Laboratory for examination of hand­writings, as also the signatures, the trial Court denied the said request on the ground that the cheque of Rs 41,000/­ was already cleared and as, the dispute is not in respect of signature which is the only material and vital aspect. Moreover, the trial court was also of the opinion that one of the cheques was already cleared by the bank and therefore also the same cannot be permitted as no purpose is to be served.

3.1 The learned advocate Mr. Amin fervently urged that the respondent has not appeared before this Court despite notice and no harm is going to be caused to the respondent if such a request of the petitioner is acceded to. He relied upon the decision of the Apex Court rendered in the case of Mrs. Kalyani Baskar Vs Mrs. M.S. Sampoornam in Criminal Appeal No. 1293 of 2006 dated 11th December 2006. He also relied upon the decision of Bombay High Court judgment in Criminal Revision Application NO. 47 of 2009 decided on 9th April 2010 in the case of Mrs. Devarsha Dnyaneshwar Parob Vs Mulgao­Sirigao­ Advalpal. V.K.S Society Ltd and Anr reported on 2010(2) DCR 67.

4. The crux of all the matters is that mere admission of signature on the cheque is not a sufficient basis as far as section 138 of the Negotiable Instrument Act is concerned. And, there are catena of judgments which cast burden upon the accused of proving non­existence of the consideration, by bringing on record the preponderance of probabilities upon which he relies and on his failing to discharge initial burden of proof by showing non­existence of the consideration, the complainant would invariably be held to be entitled to the benefit of presumption arising under section 118 of the Negotiable Instruments Act.

5. This is of course not a case under the Negotiable Instruments Act however, from the beginning the defence of present petitione is very clear and therefore, no harm is going to be caused, if such reference is made as requested for by the petitioner. At the same time, it is also required to be noted that Section 73 of the Indian Evidence Act permits the Court to examine the hand writing itself and base its opinion on such examination with a view to arrive at just conclusion. Reference to the hand writing expert in a suit of 2007 is requested in the year 2011. As the issues are yet not cast, there is a need to interfere with the order impugned. Request is required to be acceded to.

6. Assuming that importance in the cheque is of the signature and one of the cheques has been already cleared by the bank, nonetheless defence of the petitioner from the inception is of misuse of cheque despite the payment of full amount to the respondent.

7. Reference of specimen signatures alongwith the original cheques as prayed for be sent to the FSL within a fortnight of receipt of this order at the expense of the petitioner. Director, FSL, Surat be requested to submit the report to the Court within 12 weeks of receipt of such documents.

8. Petition stands disposed of in the above terms. Rule is confirmed.

(Ms. Sonia Gokani,J.) mary//