IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.7609/2015 BETWEEN SATHYANARAYANA K S/O. LATE SEETHARAM BHAT, AGED ABOUT 48 YEARS, PROPRIETOR, KODIBAIL AGENCIES BELLARE, SULLIA TALUK, D.K.DISTRICT-574 212.
... PETITIONER (BY SMT NEERAJA KARANTH, ADV.) AND M/S RATNAGIRI IMPEX PVT. LTD., NO.I/G, 7TH CROSS, NEW GUDDANNAHALLI, MYSORE ROAD, BANGALORE-560 026, REPRESENTED BY ITS DIRECTOR S.A. GOPALAKRISHNA.
... RESPONDENT (BY SRI R NAGENDRA NAIK, ADV.) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ORDER DATED 26.09.2014 ON THE INTERLOCUTORY APPLICATION FILED BY THE PETR. U/S 45 OF THE INDIAN EVIDENCE ACT IN C.C.NO.31805/2009 PENDING ON THE FILE OF THE XXV A.C.M.M., BANGALORE.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The petitioner is aggrieved by the order passed by the XXV Additional Chief Metropolitan Magistrate, Bangalore in rejecting the application filed by the petitioner/accused under Section 45 of the Indian Evidence Act in CC No.31805/2009.
2. In a proceedings filed by respondent-complainant under Section 138 of Negotiable Instruments Act, after closure of evidence of complainant, petitioner/accused moved an application under Section 45 of the Indian Evidence Act seeking to send the subject cheques for examination by the handwriting expert.
3. The application was opposed by respondent- Complainant. By the impugned order dated 26.9.2014, the learned Magistrate dismissed the application. The only reason assigned by the learned Magistrate for dismissal of the application is that, if the signatures appearing on the cheques do not belong to the accused, then the accused should have to examine the Bank Manager to show that the signature appearing on the cheques are not the signatures of the accused.
4. The above reasoning cannot be accepted. The petitioner/accused had taken up a specific stand before the trial Court that the subject cheques were stolen in the year 2009. Reliable documents were produced before the trial Court in support of the contention that much before presentation of the subject cheques for encashment, accused had lodged a complaint alleging theft/loss of the cheques and also issued a mandate to the Bank not to honour the said cheques. In the light of the said contention, the burden was on the accused to substantiate the said defense. In that view of the matter, petitioner/accused having sought to substantiate the defence by producing the expert evidence, the same could not have been shut out by the trial Court. The proposed evidence being relevant and necessary for fair adjudication of the dispute, in my view, the trial Court ought to have allowed the application. Hence, the petition is allowed. Impugned order dated 26.9.2014 passed by the XXV ACMM, Bengaluru is set aside. Application filed by the petitioner/accused under Section 45 of the Evidence Act is allowed. The learned Magistrate shall take steps to send the subject cheques for examination by the expert as sought for on such terms and conditions as found appropriate by the trial Court.
Sd/- JUDGE Sk/- CT-HR