IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.6678 OF 2016 BETWEEN:
RAJENDRA S/O K.VAMANACHAR, AGED 45 YEARS, CIVIL ENGINEER, R/AT NEW KADRI KAMBLA ROAD, BEJAI, MANGALORE-4. ... PETITIONER (BY SRI: DEEPAK POOVAIAH, ADVOCATE FOR SRI: T.A.KARUMBAIAH, ADVOCATE) AND:
E.C.JEEVAN S/O CHATHU KUTTY, AGED 55 YEARS, PANJERPET VIRAJPET TALUK, KODAGU DISTRICT. ... RESPONDENT ---
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 02.08.2016 PASSED BY II ADDL. DIST. AND S.J., KODAGU-MADIKERI, SITTING AT VIRAJPET IN CRL.A.NO.43/2012 ON I.A FILED BY THE PETR. U/S 243 CRPC AND SEC.45 OF EVIDENCE ACT AND ALLOW THE SAID APPLICATION AS PRAYED FOR.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner is aggrieved by the order dated 02.08.2016 passed by the II Additional District and Sessions Judge, Kodagu- Madikeri, sitting at Virajpet in Criminal Appeal No.43/2012, whereby the application filed by the petitioner (accused) under section 243 Cr.P.C., and section 45 of the Indian Evidence Act, seeking to refer the cheque bearing No.039957 dated 20.9.2003 for examination of the handwriting expert is rejected.
2. The Appellate Court has rejected the application on two grounds. Firstly, it has noted that the complaint was filed in 2004. Petitioner/accused did not choose to refer the said cheque for examination by the expert until conclusion of the trial and even after filing the appeal in 2012, petitioner/accused moved the above application only in 2016. Secondly, the Appellate Court has observed that, having regard to the defence set up by the accused, the application is liable to be rejected. The Appellate Court has imposed a cost of Rs.10,000/- on the petitioner.
3. Learned counsel for the petitioner submits that the impugned order suffers from patent error and illegality. Having regard to the contentions urged by the petitioner before the Appellate Court, the Court itself ought to have sent the document for expert opinion and hence, he submits that dismissal of the application is not proper and imposition of cost was also not called for in the facts and circumstances of the case.
4. I am unable to accept the contentions of the learned counsel for the petitioner. First and foremost, the petitioner has not disputed the issuance of the cheque and his signature thereon. According to the petitioner, a signed cheque was issued by him to the complainant. If so, section 20 of the Negotiable Instruments Act gives an authority to the holder thereof to complete the inchoate document. Under the said circumstances, there is absolutely no justification for the petitioner to refer the said cheque for examination by expert under section 45 of the Indian Evidence Act. Therefore, the reasoning assigned by the Appellate Court for rejection of the application cannot be found fault with.
5. Insofar as the imposition of the cost is concerned, having regard to the manner in which the petitioner has been defending the case and has chosen to move the said application at the appellate stage, that too four years after filing of the appeal, in my view, the Appellate Court was well within its powers to impose exemplary cost. I do not find any good ground to interfere with the said order.
Accordingly, the petition is dismissed.
In view of the dismissal of the petition, I.A.No.1/2016 does not survive for consideration and it is also dismissed.
Sd/- JUDGE Bss