Annappa Maruti Magadum Vs. Karnataka Multipurpose Souhard - Court Judgment

SooperKanoon Citationsooperkanoon.com/1197166
CourtKarnataka Dharwad High Court
Decided OnSep-26-2019
Case NumberCRL.P 100852/2019
JudgeK.SOMASHEKAR
AppellantAnnappa Maruti Magadum
RespondentKarnataka Multipurpose Souhard
Excerpt:
r in the high court of karnataka dharwad bench dated this the17h day of september2019before the honble mr. justice k. somashekar criminal petition no.100852/2019 between annappa maruti magadum age:60. years, occ: agriculture, r/o: ingali, tq: chikodi, dist: belagavi. ... petitioner (by sri. sharad v. magadum, adv.) and karnataka multipurpose souhard sahakari ltd., chikodi, rep. by its manager, sri.aktarhussain u rajgoli age:44. years, occ: manager, r/o: bhagya laxmi nagar, chikodi, dist: belagavi. (by sri. chetan munnoli, adv.)... respondent this criminal petition is filed u/sec.482 of cr.p.c., praying to set aside the order passed by the trial court on application under section45r/w section73of evidence act passed by the prl. civil judge and j.m.f.c. chikodi at chikodi offence u/sec.138 of n.i. act, order dated1103.2019 in cc no.991/2014 and further allow the said application. day, the court made the following: this criminal petition coming on for orders this order this petition is filed by the petitioner under section 482 of cr.p.c., challenging the order passed by the court of the principal civil judge and j.m.f.c., chikkodi in *c.c. no.991/2014* dated 11.03.2019, whereby the trial court had rejected the application filed by the petitioner accused under section 45 read with section 73 of the indian evidence act, 1872.2. heard the learned counsel for the petitioner and the learned counsel for the respondent.3. the factual matrix of the case are as under: the petitioner accused is the member of complainant karnataka multipurpose sahakari ltd., chikkodi and he had availed mtl loan of rs.8,00,000/- on 09.03.2012 by executing necessary documents and agreed to pay interest at the rate of 15% per annum and in default, he had agreed to pay 3% as penal interest and promised to repay the loan * corrected vide court order dated 26.09.2019 sd/- (ksj) amount in monthly installments of rs.13,335/- regularly. it is further alleged that on several times, the complainant requested the accused to repay the loan amount and he had prolonged the matter by saying one or the other reason and it is alleged that on 23.07.2014, the accused issued a cheque bearing no.062807 dated 23.07.2014 for an amount of rs.6,78,444/- drawn on sbi, adb branch, chikkodi towards repayment of loan amount and interest. it is alleged that on 23.07.2014, the complainant presented the cheque for encashment, but the said cheque is returned with an endorsement as funds insufficient. therefore, the respondent herein filed a complaint under section 200 of cr.p.c. against the petitioner accused for the offence punishable under section 138 of the negotiable instruments act, 1881 (hereinafter referred to as n.i. act for short). thereafter, the petitioner accused appeared and filed his objections and thereafter filed an application under section 45 read with section 73 of the indian evidence act. however, the trial court dismissed the application filed by the petitioner on the ground that the petitioner has accepted the signature on the cheque, though the petitioner has sought for very signature on the cheque and writing on the cheque and hence, sought for referring the matter for expert for comparison of signature and handwriting. after passing of the impugned order, the trial court recorded the statement of the accused under section 313 of cr.p.c. on 10.04.2019 and posted the matter for arguments. hence, being aggrieved by the impugned order, the petitioner accused has filed this petition under section 482 of cr.p.c., seeking to set aside the order passed by the trial court.4. learned counsel for the petitioner submitted that the trial court has erred in dismissing the application filed by the petitioner without considering the evidence on record. he further submitted that though the trial court has recorded the statement of petitioner under section 313 of cr.p.c., wherein the petitioner has stated that he has got defense evidence but the trial court has not given any opportunity to the petitioner to lead defense evidence. learned counsel for the petitioner has further submitted that the trial court ought to have considered the fact that the cheque is misused as the petitioner has not filled up the cheque, but it is the complainant who has misused the cheque and hence, sending the cheque for handwriting expert is a must to know the age of the ink of the hand writing on the cheque so also the signature on the cheque, as the same has been denied by the petitioner as the handwriting on the cheque is not belonging to the petitioner.5. it is further submitted by the learned counsel for the petitioner that the trial court has not considered the fact that the petitioner has stated that he has defense evidence after 313 statement and he has not been given opportunity and the matter was posted for arguments and hence, he prayed to allow the application, as the complainant has stated that the petitioner has given the cheque by filling it, as the same was denied by the petitioner and accordingly, the age of the ink and the writing of the particulars on the cheque requires to be sent for the expert opinion. hence, he submits that interference of this court is required.6. learned counsel for the petitioner in support of his contentions has placed reliance of the judgment in the case of smt.nasreen pasha vs. malik ahmed reported in 2017 (2) kar. l.j.586, wherein it has held that the court below considering all aspects of the case, it ought to have allowed the application under section 45 of the indian evidence act, for obtaining expert opinion on disputed signature and also not adhered to the principles of natural justice by providing fullest opportunity to defend himself, even if there were to be any difference in signatures, the trial court should not have ventured upon to examine the same, unless experts opinion is also available, by exercising powers under section 73 of the indian evidence act and the impugned judgments of the trial court and the appellate court set aside and the application under section 45 of the evidence act was allowed.7. learned counsel for the petitioner has further placed a reliance of the judgment in the cases of n.muniswamy reddy vs. m.narayanaswamy reported in 2014 scc2869and shri ishwar vs. sri suresh reported in ilr2009kar 4310, wherein it has held that the accused pleaded that the cheque in question was misused and the same was not written in his handwriting and the dismissal of the application filed by the accused to refer the cheque for an expert examination, it held that the accused cannot be convicted without an opportunity being given to him to present his case, adducing evidence in support of the defence is a valuable right and the denial of that right means denial of fair trial and it is essential that the rules of procedure designed to ensure justice should be scrupulously followed and the court should be jealous in seeing that there is no breach of them and when the case of the accused is that his cheque has been misused, though the presumption under section 118(a) and 139 of the act can be raised, still an opportunity must be granted to the accused for adducing evidence in rebuttal thereof and denying of opportunity is illegal and held that it is necessary to have an expert opinion as sought by the accused.8. learned counsel for the petitioner by placing reliance of the above cases submitted that the judgments referred above are squarely applicable to the present case on hand and hence, the application filed by the petitioner accused under section 45 read with section 73 of the evidence act may kindly be allowed by setting aside the impugned order passed by the trial court in c.c. no.991/2014 dated 11.03.2019. these are all the contentions taken by the learned counsel for the petitioner and sought to allow the petition filed under section 482 of cr.p.c.9. per contra, learned counsel namely chetan munnoli supported the impugned order passed by the trial court in rejecting the application filed by the petitioner accused under section 45 read with section 73 of the indian evidence act in c.c. no.991/2014 dated 11.03.2019. learned counsel for the respondent has also placed reliance of the judgment of the punjab & haryana high court in the case of yash pal vs. kartar singh reported in laws (p&h) 2003 5 24, wherein it was held as follows: that on consideration of the provision under order xxvi rule 10a, a discretion has been vested in the civil court to get any scientific investigation conducted only : if it thinks necessary or expedient in the interest of justice. the basic rationale of the provision is that if the opinion of the scientific investigation is going to help in extracting the truth and determining the controversy raised in the dispute before the court then such an investigation could be permitted. however, in the present case, such investigation is not likely to help to conclusively prove that the writing dated 11.02.1998 was in fact recorded earlier because the age of the ink cannot be determined on the basis of the writing. if the ink is manufactured five years before the date of the execution of the document and used on 11.02.1998 for the first time, then instead of resolving any controversy it would create confusion. therefore, no useful purpose could be served by allowing such an application. it is true that opinion of expert is relevant under sections 45 and 46 of the indian evidence act, 1872, but in the present case that has to be read with order xxvi rule 10a. the basic rationale is whether such scientific investigation is going to advance the cause of justice and : would be necessary for adjudicating upon the rights of the parties. therefore, i do not find any ground to interfere in the well reasoned order passed by the civil judge.10. learned counsel for the respondent has also placed reliance of the judgment of the high court of madras in the case of s.gopal vs. d.balachandran reported in laws (mad) 2008 1 360, wherein it has held that: where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in india, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount, specified therein and not exceeding the amount covered by the stamp, prondtes and bills of exchange, there is a clear mandate under section 20 of the : negotiable instruments act to the effect that such an instruct can be negotiated by the maker thereof by simply signing and delivering the same to the holder in due course giving thereby ample authority to the latter to fill up the content of the instrument as intended by the maker thereof.11. the learned counsel for the respondent has also placed other reliances in the case of union of india vs. jyoti prakash mitter reported in laws (sc) 1971 1 57 and the order of the coordinate bench in criminal petition no.101999/2018, wherein it has held in para 7 and 8 as follows:7. for having taken note of the grounds urged in the petition and also the fact that the petitioner did not dispute the signature available on the cheque, only contention is raised that the handwriting is not in the handwriting of the accused and when such being the case and when the court below has assigned reasons with regard to not disputing the signature : available on the cheque, the contention of the petitioners counsel that cheque has been disputed cannot be accepted. even, the court can compare the signature under section 73 of the indian evidence act, including writing or seal with other admitted or proved, in order to ascertain whether a signature, writing or seal is that of the person by who it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.8. when the court has got power under section 73 to compare the signature, writing or seal, even if it is disputed, the signature or writing, the same can be considered by the court below and hence this court is of the opinion that the petitioner has not made out any ground to : set aside the order of the trial court in rejecting the application.12. learned counsel for the respondent by placing the reliances referred to above sought for dismissal of the petition filed by the petitioner accused under section 482 of cr.p.c., as there are no justifiable grounds to allow the said petition.13. it is in terms of the contentions as taken by the learned counsel for the petitioner and so also the counter made by the learned counsel for the respondent, it is relevant to state that, the accused being a member of complainant sahakari ltd., had availed loan of rs.8,00,000/- on 09.03.2012 by executing necessary documents and had agreed to pay interest at the rate of 15% per annum. however, in default, he had also agreed to pay 3% as penal interest and had promised to repay the loan amount in monthly installments of rs.13,335/- regularly. the complainant requested the accused to repay the loan : amount and the accused had prolonged the matter by saying one or the other reason. on 23.07.2014, the accused had issued a cheque and when the complainant presented the cheque for encashment, the said cheque returned with an endorsement as funds insufficient in the account of the account holder. therefore, the respondent herein filed a private complaint under section 200 of cr.p.c. against the accused for the offence punishable under section 138 of the n.i. act. thereafter, the accused appeared and filed his objections and filed an application under section 45 read with section 73 of the indian evidence act. however, the trial court dismissed the application filed by the petitioner. after passing of the impugned order, the trial court recorded the statement of the accused under section 313 of cr.p.c. on 10.04.2019 and posted the matter for arguments.14. it is relevant to refer sections 293(1) and 293(4)(c) of cr.p.c. which reads as follows: : 293. reports of certain government scientific experts. (1) any document purporting to be a report under the hand of a government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this code, may be used as evidence in any inquiry, trial or other proceeding under this code. 293(4). this section applies to the following government scientific experts, namely: - (c) the director of the finger print bureau.15. it is also relevant to refer sections 45 and 73 of the indian evidence act, 1872 which reads as follows:45. opinions of experts.-when the court has to form an opinion upon a point of foreign law or of science or art, or : as to identity of handwriting [or finger impressions]., the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting]. [or finger impressions]. are relevant facts. such persons are called experts.73. comparison of signature, writing or seal with others admitted or proved.in order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. : the court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by such person. [this section applies also, with any necessary modifications, to finger-impressions.].16. section 73 of the indian evidence act, 1872, relates to the comparison of signature, writing or seal with others admitted or proved. however, it is the power vested under the court to consider and decide the matter by sending the disputed cheque for expert opinion or not. it is relevant to refer the judgment of the patna high court in the case of khushboo sharivastava, d/o. sri mohan prasad shrivastava vs. the union of india (uoi) through the secretary, human resources department, govt. of india and others reported in : 2009 (1) pljr867 ultimately the judge will be an expert apart from other experts or an expert of the expert or court is an expert of experts in concluding the matter by taking the decision after considering the entire facts of the case, as keeping in view the scope and object of section 73 of the indian evidence act, 1872.17. in the instant petition, the petitioner is arraigned as accused in c.c. no.991/2014, wherein he is facing up the trial for the offence punishable under section 138 of the n.i. act. in the meanwhile, the petitioner accused had made an application under section 45 read with section 73 of the act, 1972 seeking to refer the disputed cheque at ex.p-2 subjected for examination and to give the opinion report regarding the age of ink and also the contents of writing made on the cheque. but the said application was rejected by the court below in c.c. no.991/2014 and the same has been challenged : under this petition. mere because technically the provision has been quoted by the applicant accused before the court below seeking to refer the disputed cheque ex.p-2, it cannot be a ground to reject the application filed by the petitioner herein, but the relevant provision under section 293(1) and 293(4)(c) of cr.p.c. regarding subjecting the disputed cheque for examination or analysis and securing the report under this court, it may be used as evidence in any enquiry, trial or other proceedings.18. accordingly, subjecting the disputed cheque at ex.p-2, relating to the age of ink and contents found on the said cheque, is required to be examined and a report to be secured by the forensic science laboratory. therefore, it is said that the petition requires to be considered keeping in view the aforesaid relevant provision of section 293 of cr.p.c. based upon the relevant provision of sections 293(1) and 293(4)(c) of cr.p.c., having an authority to : examine the disputed cheque relating to the age of ink and contents of writing found on the cheque got marked as ex.p-2 in the aforesaid case be adjudicated between the complainant and the accused.19. for the aforesaid reasons and findings, it is deemed proper to consider the petition filed by the petitioner accused and intervention of this court into the impugned order is called for. accordingly, i proceed to pass the following: order (i) *criminal petition* filed by the petitioner accused under section 482 of cr.p.c. is hereby allowed. (ii) the impugned order passed by the trial court in c.c. no.991/2014 dated 11.03.2019 is hereby set aside. consequently, the application filed by the petitioner accused under section 45 read with section 73 of the indian evidence act in c.c. no.991/2014 stands allowed. * corrected vide court order dated 26.09.2019 sd/- (ksj) : (iii) the consideration of the said application filed by the applicant accused are concerned, it is relevant to stipulate the condition, such as, the trial court in c.c. no.991/2014 shall secure both the complainant and the accused and in their presence, the disputed cheque at ex.p-2 shall be forwarded to the concerned forensic science laboratory for the purpose of examination or analysis and with a direction to submit the report to the court in a sealed manner. (iv) the trial court in *c.c. no.991/2014* is directed to fix the expenditure on the petitioner accused for sending the disputed cheque ex.p-2 for examination or analysis from the concerned fsl wherever he desire, as maintained by the government. (v) the case in c.c. no.991/2014 is of the year 2014. therefore, the trial court shall expedite the case on merits in accordance with law. * corrected vide court order dated 26.09.2019 sd/- (ksj) : however, it is made clear that whatever the observations made by this court in this order shall not influence the mind of the court while disposing of the case and shall be disposed of on merits. rsh sd/- judge
Judgment:

R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE17H DAY OF SEPTEMBER2019BEFORE THE HONBLE MR. JUSTICE K. SOMASHEKAR CRIMINAL PETITION NO.100852/2019 BETWEEN ANNAPPA MARUTI MAGADUM AGE:

60. YEARS, OCC: AGRICULTURE, R/O: INGALI, TQ: CHIKODI, DIST: BELAGAVI. ... PETITIONER (BY SRI. SHARAD V. MAGADUM, ADV.) AND KARNATAKA MULTIPURPOSE SOUHARD SAHAKARI LTD., CHIKODI, REP. BY ITS MANAGER, SRI.AKTARHUSSAIN U RAJGOLI AGE:

44. YEARS, OCC: MANAGER, R/O: BHAGYA LAXMI NAGAR, CHIKODI, DIST: BELAGAVI. (BY SRI. CHETAN MUNNOLI, ADV.)
... RESPONDENT

THIS CRIMINAL PETITION IS FILED U/SEC.482 OF CR.P.C., PRAYING TO SET ASIDE THE ORDER PASSED BY THE TRIAL COURT ON APPLICATION UNDER SECTION45R/W SECTION73OF EVIDENCE ACT PASSED BY THE PRL. CIVIL JUDGE AND J.M.F.C. CHIKODI AT CHIKODI OFFENCE U/SEC.138 OF N.I. ACT, ORDER DATED1103.2019 IN CC NO.991/2014 AND FURTHER ALLOW THE SAID APPLICATION. DAY, THE COURT MADE THE FOLLOWING: THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS

ORDER This petition is filed by the petitioner under Section 482 of Cr.P.C., challenging the order passed by the Court of the Principal Civil Judge and J.M.F.C., Chikkodi in *C.C. No.991/2014* dated 11.03.2019, whereby the trial Court had rejected the application filed by the petitioner accused under Section 45 read with Section 73 of the Indian Evidence Act, 1872.

2. Heard the learned counsel for the petitioner and the learned counsel for the respondent.

3. The factual matrix of the case are as under: The petitioner accused is the member of complainant Karnataka Multipurpose Sahakari Ltd., Chikkodi and he had availed MTL loan of Rs.8,00,000/- on 09.03.2012 by executing necessary documents and agreed to pay interest at the rate of 15% per annum and in default, he had agreed to pay 3% as penal interest and promised to repay the loan * Corrected vide Court Order dated 26.09.2019 Sd/- (KSJ)

amount in monthly installments of Rs.13,335/- regularly. It is further alleged that on several times, the complainant requested the accused to repay the loan amount and he had prolonged the matter by saying one or the other reason and it is alleged that on 23.07.2014, the accused issued a cheque bearing No.062807 dated 23.07.2014 for an amount of Rs.6,78,444/- drawn on SBI, ADB Branch, Chikkodi towards repayment of loan amount and interest. It is alleged that on 23.07.2014, the complainant presented the cheque for encashment, but the said cheque is returned with an endorsement as funds insufficient. Therefore, the respondent herein filed a complaint under Section 200 of Cr.P.C. against the petitioner accused for the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as N.I. Act for short). Thereafter, the petitioner accused appeared and filed his objections and thereafter filed an application

under Section 45 read with Section 73 of the Indian Evidence Act. However, the Trial Court dismissed the application filed by the petitioner on the ground that the petitioner has accepted the signature on the cheque, though the petitioner has sought for very signature on the cheque and writing on the cheque and hence, sought for referring the matter for expert for comparison of signature and handwriting. After passing of the impugned order, the Trial Court recorded the statement of the accused under Section 313 of Cr.P.C. on 10.04.2019 and posted the matter for arguments. Hence, being aggrieved by the impugned order, the petitioner accused has filed this petition under Section 482 of Cr.P.C., seeking to set aside the order passed by the Trial Court.

4. Learned counsel for the petitioner submitted that the Trial Court has erred in dismissing the application filed by the petitioner without considering the evidence on record. He further

submitted that though the Trial Court has recorded the statement of petitioner under Section 313 of Cr.P.C., wherein the petitioner has stated that he has got defense evidence but the Trial Court has not given any opportunity to the petitioner to lead defense evidence. Learned counsel for the petitioner has further submitted that the Trial Court ought to have considered the fact that the cheque is misused as the petitioner has not filled up the cheque, but it is the complainant who has misused the cheque and hence, sending the cheque for handwriting expert is a must to know the age of the ink of the hand writing on the cheque so also the signature on the cheque, as the same has been denied by the petitioner as the handwriting on the cheque is not belonging to the petitioner.

5. It is further submitted by the learned counsel for the petitioner that the Trial Court has not considered the fact that the petitioner has stated that

he has defense evidence after 313 statement and he has not been given opportunity and the matter was posted for arguments and hence, he prayed to allow the application, as the complainant has stated that the petitioner has given the cheque by filling it, as the same was denied by the petitioner and accordingly, the age of the ink and the writing of the particulars on the cheque requires to be sent for the expert opinion. Hence, he submits that interference of this Court is required.

6. Learned counsel for the petitioner in support of his contentions has placed reliance of the judgment in the case of Smt.Nasreen Pasha vs. Malik Ahmed reported in 2017 (2) Kar. L.J.

586, wherein it has held that the Court below considering all aspects of the case, it ought to have allowed the application under Section 45 of the Indian Evidence Act, for obtaining expert opinion on disputed signature and also not adhered to the principles of natural

justice by providing fullest opportunity to defend himself, even if there were to be any difference in signatures, the Trial Court should not have ventured upon to examine the same, unless experts opinion is also available, by exercising powers under Section 73 of the Indian Evidence Act and the impugned judgments of the Trial Court and the Appellate Court set aside and the application under section 45 of the Evidence Act was allowed.

7. Learned counsel for the petitioner has further placed a reliance of the judgment in the cases of N.Muniswamy Reddy vs. M.Narayanaswamy reported in 2014 SCC2869and Shri Ishwar vs. Sri Suresh reported in ILR2009Kar 4310, wherein it has held that the accused pleaded that the cheque in question was misused and the same was not written in his handwriting and the dismissal of the application filed by the accused to refer the cheque for an expert examination, it held that the accused cannot be

convicted without an opportunity being given to him to present his case, adducing evidence in support of the defence is a valuable right and the denial of that right means denial of fair trial and it is essential that the rules of procedure designed to ensure justice should be scrupulously followed and the Court should be jealous in seeing that there is no breach of them and when the case of the accused is that his cheque has been misused, though the presumption under Section 118(a) and 139 of the Act can be raised, still an opportunity must be granted to the accused for adducing evidence in rebuttal thereof and denying of opportunity is illegal and held that it is necessary to have an expert opinion as sought by the accused.

8. Learned counsel for the petitioner by placing reliance of the above cases submitted that the judgments referred above are squarely applicable to the present case on hand and hence, the application filed by the petitioner accused under Section 45

read with Section 73 of the Evidence Act may kindly be allowed by setting aside the impugned order passed by the Trial Court in C.C. No.991/2014 dated 11.03.2019. These are all the contentions taken by the learned counsel for the petitioner and sought to allow the petition filed under Section 482 of Cr.P.C.

9. Per contra, learned counsel namely Chetan Munnoli supported the impugned order passed by the Trial Court in rejecting the application filed by the petitioner accused under Section 45 read with Section 73 of the Indian Evidence Act in C.C. No.991/2014 dated 11.03.2019. Learned counsel for the respondent has also placed reliance of the judgment of the Punjab & Haryana High Court in the case of Yash Pal vs. Kartar Singh reported in LAWS (P&H) 2003 5 24, wherein it was held as follows: that on consideration of the provision under Order XXVI Rule 10A, a discretion has been vested in the Civil Court to get any scientific investigation conducted only :

if it thinks necessary or expedient in the interest of justice. The basic rationale of the provision is that if the opinion of the scientific investigation is going to help in extracting the truth and determining the controversy raised in the dispute before the Court then such an investigation could be permitted. However, in the present case, such investigation is not likely to help to conclusively prove that the writing dated 11.02.1998 was in fact recorded earlier because the age of the ink cannot be determined on the basis of the writing. If the ink is manufactured five years before the date of the execution of the document and used on 11.02.1998 for the first time, then instead of resolving any controversy it would create confusion. Therefore, no useful purpose could be served by allowing such an application. It is true that opinion of expert is relevant under Sections 45 and 46 of the Indian Evidence Act, 1872, but in the present case that has to be read with Order XXVI rule 10A. The basic rationale is whether such scientific investigation is going to advance the cause of justice and :

would be necessary for adjudicating upon the rights of the parties. Therefore, I do not find any ground to interfere in the well reasoned order passed by the Civil Judge.

10. Learned counsel for the respondent has also placed reliance of the judgment of the High Court of Madras in the case of S.Gopal vs. D.Balachandran reported in LAWS (MAD) 2008 1 360, wherein it has held that: where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount, specified therein and not exceeding the amount covered by the stamp, prondtes and bills of exchange, there is a clear mandate under Section 20 of the :

Negotiable Instruments Act to the effect that such an instruct can be negotiated by the maker thereof by simply signing and delivering the same to the holder in due course giving thereby ample authority to the latter to fill up the content of the instrument as intended by the maker thereof.

11. The learned counsel for the respondent has also placed other reliances in the case of Union of India vs. Jyoti Prakash Mitter reported in LAWS (SC) 1971 1 57 and the order of the coordinate Bench in Criminal Petition No.101999/2018, wherein it has held in para 7 and 8 as follows:

7. For having taken note of the grounds urged in the petition and also the fact that the petitioner did not dispute the signature available on the cheque, only contention is raised that the handwriting is not in the handwriting of the accused and when such being the case and when the Court below has assigned reasons with regard to not disputing the signature :

available on the cheque, the contention of the petitioners counsel that cheque has been disputed cannot be accepted. Even, the Court can compare the signature under section 73 of the Indian Evidence Act, including writing or seal with other admitted or proved, in order to ascertain whether a signature, writing or seal is that of the person by who it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.

8. When the Court has got power under section 73 to compare the signature, writing or seal, even if it is disputed, the signature or writing, the same can be considered by the Court below and hence this Court is of the opinion that the petitioner has not made out any ground to :

set aside the order of the trial Court in rejecting the application.

12. Learned counsel for the respondent by placing the reliances referred to above sought for dismissal of the petition filed by the petitioner accused under Section 482 of Cr.P.C., as there are no justifiable grounds to allow the said petition.

13. It is in terms of the contentions as taken by the learned counsel for the petitioner and so also the counter made by the learned counsel for the respondent, it is relevant to state that, the accused being a member of complainant Sahakari ltd., had availed loan of Rs.8,00,000/- on 09.03.2012 by executing necessary documents and had agreed to pay interest at the rate of 15% per annum. However, in default, he had also agreed to pay 3% as penal interest and had promised to repay the loan amount in monthly installments of Rs.13,335/- regularly. The complainant requested the accused to repay the loan :

amount and the accused had prolonged the matter by saying one or the other reason. On 23.07.2014, the accused had issued a cheque and when the complainant presented the cheque for encashment, the said cheque returned with an endorsement as funds insufficient in the account of the account holder. Therefore, the respondent herein filed a private complaint under Section 200 of Cr.P.C. against the accused for the offence punishable under section 138 of the N.I. Act. Thereafter, the accused appeared and filed his objections and filed an application under Section 45 read with Section 73 of the Indian Evidence Act. However, the Trial Court dismissed the application filed by the petitioner. After passing of the impugned order, the Trial Court recorded the statement of the accused under Section 313 of Cr.P.C. on 10.04.2019 and posted the matter for arguments.

14. It is relevant to refer Sections 293(1) and 293(4)(c) of Cr.P.C. which reads as follows: :

293. Reports of certain Government scientific experts. (1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code. 293(4). This section applies to the following Government scientific experts, namely: - (c) the Director of the Finger Print Bureau.

15. It is also relevant to refer Sections 45 and 73 of the Indian Evidence Act, 1872 which reads as follows:

45. Opinions of experts.-When the Court has to form an opinion upon a point of foreign law or of science or art, or :

as to identity of handwriting [or finger impressions]., the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting]. [or finger impressions]. are relevant facts. Such persons are called experts.

73. Comparison of signature, writing or seal with others admitted or proved.In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. :

The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. [This section applies also, with any necessary modifications, to finger-impressions.].

16. Section 73 of the Indian Evidence Act, 1872, relates to the comparison of signature, writing or seal with others admitted or proved. However, it is the power vested under the Court to consider and decide the matter by sending the disputed cheque for expert opinion or not. It is relevant to refer the judgment of the Patna High Court in the case of Khushboo Sharivastava, D/o. Sri Mohan Prasad Shrivastava vs. The Union of India (UOI) Through the Secretary, Human Resources Department, Govt. of India and others reported in :

2009 (1) PLJR867 Ultimately the Judge will be an expert apart from other experts or an expert of the expert or Court is an expert of experts in concluding the matter by taking the decision after considering the entire facts of the case, as keeping in view the scope and object of Section 73 of the Indian Evidence Act, 1872.

17. In the instant petition, the petitioner is arraigned as accused in C.C. No.991/2014, wherein he is facing up the trial for the offence punishable under Section 138 of the N.I. Act. In the meanwhile, the petitioner accused had made an application under Section 45 read with Section 73 of the Act, 1972 seeking to refer the disputed cheque at Ex.P-2 subjected for examination and to give the opinion report regarding the age of ink and also the contents of writing made on the cheque. But the said application was rejected by the Court below in C.C. No.991/2014 and the same has been challenged :

under this petition. Mere because technically the provision has been quoted by the applicant accused before the Court below seeking to refer the disputed cheque Ex.P-2, it cannot be a ground to reject the application filed by the petitioner herein, but the relevant provision under Section 293(1) and 293(4)(c) of Cr.P.C. regarding subjecting the disputed cheque for examination or analysis and securing the report under this Court, it may be used as evidence in any enquiry, trial or other proceedings.

18. Accordingly, subjecting the disputed cheque at Ex.P-2, relating to the age of ink and contents found on the said cheque, is required to be examined and a report to be secured by the Forensic Science Laboratory. Therefore, it is said that the petition requires to be considered keeping in view the aforesaid relevant provision of Section 293 of Cr.P.C. Based upon the relevant provision of Sections 293(1) and 293(4)(c) of Cr.P.C., having an authority to :

examine the disputed cheque relating to the age of ink and contents of writing found on the cheque got marked as Ex.P-2 in the aforesaid case be adjudicated between the complainant and the accused.

19. For the aforesaid reasons and findings, it is deemed proper to consider the petition filed by the petitioner accused and intervention of this court into the impugned order is called for. Accordingly, I proceed to pass the following: ORDER (i) *Criminal Petition* filed by the petitioner accused under Section 482 of Cr.P.C. is hereby allowed. (ii) The impugned order passed by the Trial Court in C.C. No.991/2014 dated 11.03.2019 is hereby set aside. Consequently, the application filed by the petitioner accused under Section 45 read with Section 73 of the Indian Evidence Act in C.C. No.991/2014 stands allowed. * Corrected vide Court Order dated 26.09.2019 Sd/- (KSJ) :

(iii) The consideration of the said application filed by the applicant accused are concerned, it is relevant to stipulate the condition, such as, the Trial Court in C.C. No.991/2014 shall secure both the complainant and the accused and in their presence, the disputed cheque at Ex.P-2 shall be forwarded to the concerned Forensic Science Laboratory for the purpose of examination or analysis and with a direction to submit the report to the Court in a sealed manner. (iv) The Trial Court in *C.C. No.991/2014* is directed to fix the expenditure on the petitioner accused for sending the disputed cheque Ex.P-2 for examination or analysis from the concerned FSL wherever he desire, as maintained by the Government. (v) The case in C.C. No.991/2014 is of the year 2014. Therefore, the Trial Court shall expedite the case on merits in accordance with law. * Corrected vide Court Order dated 26.09.2019 Sd/- (KSJ) :

However, it is made clear that whatever the observations made by this Court in this order shall not influence the mind of the Court while disposing of the case and shall be disposed of on merits. Rsh SD/- JUDGE