IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26th DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.6792/2016 BETWEEN:
POLANNA REDDY, S/O LATE DONNAPPA, AGED ABOUT 63 YEARS, R/AT AKSHAYA NILAYA, MUNICIPAL COLONY, KELGOTE, CHITRADURGA-577501. ... PETITIONER (By Sri.KARTHIK YADAV U, ADVOCATE FOR Sri.VENKATA REDDY S.K, ADVOCATE) AND:
M.N. LEELAVATHI, W/O M.N.NAGARAJA SHETTY, AGED ABOUT 48 YEARS, 5TH BLOCK, C.K.PURA EXTENSION, CHITRADURGA-577501. ... RESPONDENT (By Ms.SHILPA.B, ADVOCATE) THIS CRL.P IS FILED U/S.482 OF CR.P.C., PRAYING TO QUASH THE IMPUGNED ORDER DATED 06.08.2016 PASSED ON APPLICATION FILED U/S 45 OF EVIDENCE ACT, IN C.C.NO.544/2013 BY II ADDL. JMFC, CHITRADURGA, BY ALLOWING THIS PETITION AND CONSEQUENTLY DISMISS THE APPLICATION FILED BY THE RESPONDENT U/S 45 OF EVIDENCE ACT IN C.C.NO.544/2013 ON THE FILE OF II ADDL. CIVIL JUDGE AND JMFC, CHITRADURGA TO STALL THE ABUSE OF PROCESS OF COURT.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner is aggrieved by the order dated 6.8.2016 passed by the II Additional Civil Judge and JMFC, Chitradurga, whereby the application filed by the respondent herein(accused) under Section 45 of the Evidence Act has been allowed and the cheque has been directed to be sent for examination by the handwriting expert.
2. Heard learned counsel for petitioner and learned counsel for respondent. Perused the records.
3. The petitioner herein filed a complaint under Section 138 of Negotiable Instrument Act. After closure of the evidence of the complainant and the accused, the accused moved the above application under Section 45 of the Evidence Act seeking to refer the disputed cheque- Ex.P1 for scientific examination on the ground that the cheque was issued by the second respondent-accused in blank and the same has been misused by the petitioner to lay a false claim under Section 138 of the Act. The application was opposed by the petitioner. However, learned Magistrate by the impugned order allowed the application.
4. As rightly submitted by learned counsel for the petitioner, the defence set up by the respondent- accused during trial is that the “signed cheque” was handed over by her at the time of execution of the sale agreement. This defence has not only been suggested to P.W.1, even D.W.2 in his evidence has in unequivocal terms stated that during the execution of the agreement of sale a “signed cheque” was given by the accused to the complainant, making it evident that the defence set up by the accused right from the inception was that “signed cheque” was given to the petitioner. It is only in the application filed under Section 45 of the Evidence Act, at the fag end of the trial the accused has come up with the plea that a blank cheque was given to the complainant and the same has been misused by him. The said plea is contrary to the defence set up by the petitioner during trial. The respondent-accused is required to substantiate the said defence with independent evidence. In view of the specific defence taken up by the respondent, the impugned application and the consequent order passed by the learned Magistrate are extraneous to the subject matter seized by the trial Court. The expert evidence sought to be produced by the respondent is irrelevant and not necessary for formation of opinion by the Court.
For the aforesaid reasons, the petition is allowed. The order dated 6.8.2016 passed in C.C.No.544/2013 by the II Additional Civil Judge and JMFC, Chitradurga, is set aside and the application filed by the respondent under Section 45 of the Evidence Act is dismissed.
Sd/- JUDGE *alb/-.