IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY THIS THE TWENTY SECOND DAY OF JANUARY TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE R.KANTHA RAO CRIMINAL REVISION CASE No.2487 of 2013 Between: Syed Khader . REVISION PETITIONER/COMPLAINANT And State, rep.by its Public Prosecutor, High Court of A.P., Hyderabad and another . RESPONDENTS The Court made the following:
THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL REVISION CASE No.2487 of 2013
ORDER:
This Criminal Revision Case is filed by the Revision Petitioner/Complainant against the Order dated 06.11.2013 in Crl.MP.No.247/2013 in CC.No.189/2013 (Old CC.No.212/2012) on the file of the III Special Magistrate, Hyderabad, whereby and where under the learned Magistrate dismissed the Crl.MP.No.247/2013 which was filed under Sec.45 of the Indian Evidence Act.
Though notice has been served to the 2nd respondent/accused, nobody appeared on his behalf. I have heard the learned counsel appearing for the revision petitioner/complainant.
The revision petitioner is the complainant and he filed the complaint under Sec.138 of the Negotiable Instruments Act against the 2nd respondent/accused. The petitioner/complainant produced the cheque issued by the 2nd respondent/accused before the trial Court and the 2nd respondent/accused admitted her signature on the cheque and took a plea that the contents therein were not filled by her and they were filled by somebody in some other ink. The petitioner/complainant also produced 6 pages diary before the trial Court containing the signatures of the 2nd respondent/accused. The 2nd respondent/accused disputed those signatures and contended that those signatures were forged.
The petitioner/complainant was cross examined by the 2nd respondent/accused on the point that the signatures in Ex.P1 diary are forged and were introduced to have wrongful advantage and gain.
In view of the aforesaid specific plea taken by the 2nd respondent/accused, the petitioner/complainant filed a petition in Crl.MP.No.247/2013 under Section 45 of the Indian Evidence Act praying the trial Court to refer the admitted signatures of the 2nd respondent/accused on the cheque dated 25.02.2011 along with the disputed signatures on the pages of diary which is marked as Ex.P1 to the handwriting expert for comparison and opinion. The said petition was dismissed by the trial Court holding that the said question can be decided after hearing both sides in the main case in the light of the provisions of the Negotiable Instruments Act. Feeling aggrieved, the complainant filed the present revision case.
The presumption available to the complainant under Sec.139 of the Negotiable Instruments Act is rebuttable, therefore, it is obligatory for the complainant to establish that the signatures on the pages of dairy Ex.P1 are not forged, they are genuine and they are that of the 2nd respondent/accused. For the said purpose, the complainant himself made an application under Section 45 of the Indian Evidence Act. The said plea can be considered by the trial Court at any stage of the proceedings, but the learned Magistrate dismissed the petition on the ground that the issue can be decided after hearing both sides in the main case.
I am of the view that the learned Magistrate ought to have allowed the petition filed by the complainant under Section 45 of the Indian Evidence Act. As the initial burden lies on the complainant to prove his case beyond all reasonable doubt, the trial Court ought to have allowed the petition by affording an opportunity to the petitioner/complainant to prove his version.
Therefore, the order dated 06.11.2013 passed by the learned III Special Magistrate, Hyderabad in Crl.MP.No.247/2013 in CC.No.189/2013 (Old CC.No.212/2012) is set aside and the learned Magistrate is directed to send the admitted signatures of the 2nd respondent/accused on the cheque dated 25.02.2011 along with the disputed signatures on the pages of Ex.P1 diary to the Handwriting Expert for comparison and opinion.
Accordingly, the Criminal Revision Case is allowed.
R.KANTHA RAO,J Date: 22.01.2014 Dsr