Dismissed

Basappa S/O Yallappa Gaddar v. Bhavaralal S/O Gisulal Sha

Karnataka HC7 Nov 2023CRL.P/101543/2023

Case brief

AI extract

What is this about?

High Court dismissed a criminal petition challenging an order allowing an application under Section 45 of the Evidence Act to compare signatures on an Oppige Patra ignored objections that the document was unregistered during criminal trial proceedings.

What did the court decide?

Criminal petition filed under Section 482 Cr.P.C. seeking quashing of the order to send document for comparison under Section 45 Evidence Act was dismissed.

Basappa S/O Yallappa Gaddar Vs Bhavaralal S/O Gisulal Sha — Cheque Dishonour | Karnataka HC (2023)

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NC: 2023:KHC-D:13006 CRL.P No. 101543 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 07^TH DAY OF NOVEMBER, 2023 BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL PETITION NO.101543 OF 2023

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BETWEEN:

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BASAPPA S/O YALLAPPA GADDAR URF GADADAVAR, AGED ABOUT 55 YEARS, OCC. AGRICULTURE, R/O. YERAGATTI, TQ. RABAKAVI, DIST. BAGALKOTE.

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… PETITIONER

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(BY SRI. S.C. BHUTI, ADVOCATE)

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AND:

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BHAVARALAL S/O GISULAL SHA, AGED ABOUT 63 YEARS, OCC. OWNER AMBICA AGENCY, SANTOSH APRATMENT, GABBUR GALLI, HUBBALLI-580020.

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… RESPONDENT

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VIJAYALAKSHMI M KANKUPPI Digitally signed by VIJAYALAKSHMI MKANKUPPI Date: 2023.11.10 11:48:47 +0530

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(BY SRI. GURUDEV I. GACHCHINAMTH, ADVOCATE)

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THIS CRIMINAL PETITION IS FILED U/SEC.482 OF CR.P.C. SEEKING TO QUASH THE ORDER PASSED BY THE COURT OF JMFC I COURT, HUBBALLI DHARWAD IN CC.NO.1081/2019 (PCR NO.528/2018) DATED 26.04.2023 ON APPLICATION FILED U/SEC. 45 OF EVIDENCE ACT FOR THE OFFENCE P/U/SEC.138 OF N.I ACT, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION IS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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NC: 2023:KHC-D:13006 CRL.P No. 101543 of 2023

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ORDER

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This petition is filed under Section 482 of Cr.P.C, seeking quashing of the order dated 26.04.2023 passed in C.C.No.1081/2019 by the JMFC-I Court Hubballi, where under application filed by the respondent under Section 45 of The Evidence Act came to be allowed.

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Heard learned counsel for the petitioner.

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Learned counsel for the respondent is absent.

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The respondent initiated proceedings against petitioner for the offence punishable under Section 138 of Negotiable Instrument Act (hereinafter referred as ‘N.I.Act’ for brevity) in P.C.No.528/2018 and a case came to be registered against the petitioner in C.C.No.1081/2019 for the offence punishable under Section 138 of N.I.Act. After completion of the complainant’s side and accused side evidence, the respondent filed an application under Section 45 of The Evidence Act praying to send Ex.P.6 to compare the disputed signature of the petitioner on it with his admitted signature of plea, Ex.P.1(a), 313 Statement,

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3 - NC: 2023:KHC-D:13006 CRL.P No. 101543 of 2023

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deposition of DW.1, Ex.D.1 and Ex.D.2. The petitioner filed objection to the said application. Learned Magistrate after hearing the arguments has allowed the said application by an order dated 26.04.2023. The petitioner has sought for quashing of the said order.

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Learned counsel for the petitioner would contend that he has disputed the validity of said document namely Ex.P.6 (Oppige patra). He contends that in the guise of proving the signature on Ex.P.6, the respondent intends to establish the said document-Ex.P.6. He contends that learned Magistrate by cryptic order has erred in allowing the said application. He contends that the said agreement-Ex.P.6 is not a valid document as it is not registered, it is not drawn on the stamp paper, there are no witnesses to it and it does not bear the signature of scribe. He contends that in the guise of proving the signature, the complainant cannot be permitted to establish the validity of Ex.P.6. With this, he prayed to allow the petition.

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NC: 2023:KHC-D:13006 CRL.P No. 101543 of 2023

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As per the averments of complaint, there was a registered sale agreement between petitioner and respondent dated 22.08.2016 (Ex.P.8). Under Ex.P.8, the petitioner has executed sale agreement in favour of respondent for sale of 4-Acres of land in Sy.No.60/1 for sale consideration of Rs.24,00,000/- and has received advance amount of Rs.20,00,000/-. It is the case of respondent-complainant that the petitioner did not perform his part of contract by executing the sale deed in favour of respondent and therefore, he executed Ex.P.6 (Oppige Patra) agreeing to repay an amount of Rs.10,00,000/- per acre and issued two cheques for Rs.20,00,000/- each. Since one of the cheque is said to have been issued by the petitioner to the respondent as per Ex.P.1 came to be dishonored, proceedings for the offence under Section 138 of N.I.Act are initiated against the petitioner. The petitioner who has been examined as DW.1 in his cross-examination has denied his signature on Ex.P.6. The respondent to establish the signature on Ex.P.6 is that of petitioner has filed application under

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NC: 2023:KHC-D:13006 CRL.P No. 101543 of 2023

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Section 45 of The Evidence Act to compare the disputed signatures with admitted signatures. Learned Magistrate considering the contentions of both the counsels has opined that Ex.P.6 has to be sent to the expert for comparing disputed signatures on Ex.P.6 with admitted signatures of the petitioner contained on plea, Ex.P.1(a), 313 Statement, deposition of DW.1, Ex.D.1 and Ex.D.2. As the petitioner has disputed his signature on Ex.P.6, learned Magistrate has rightly allowed the application filed under Section 45 of The Evidence Act. Learned Magistrate has not erred in passing such an order. The petitioner even after receipt of expert report is at liberty to challenge the validity of Ex.P.6 on the ground that it is not drawn on the stamp paper and there are no witnesses to the said document.

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In view of the above, petitioner has not made out any ground for quashing the order dated 26.04.2023 passed in C.C.No.1081/2019 by JMFC-I Court Hubballi. In the result, the following:

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6 - NC: 2023:KHC-D:13006 CRL.P No. 101543 of 2023

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ORDER

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The criminal petition is dismissed.

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The observations made while passing this order will

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not come in the way of disposing the criminal case by the learned Magistrate.

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Sd/JUDGE

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AM CT:BCK List No.: 1 Sl No.: 20

Basappa S/O Yallappa Gaddar v. Bhavaralal S/O Gisulal Sha

Case brief

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Basappa S/O Yallappa Gaddar v. Bhavaralal S/O Gisulal Sha

Case brief

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What did the court decide?

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