Partly allowed

Mayur S/O. Shankar Shivapur v. Basappa S/O. Siddappa Gourannavar

Karnataka HC6 Nov 2023CRL.P/102640/2023

Case brief

AI extract

What is this about?

High Court allowed criminal petition under Section 482 Cr.P.C. to quash an order rejecting an application for scientific examination of a disputed cheque. The High Court directed the trial court to keep the application pending until the completion of the complainant's evidence before deciding on it.

What did the court decide?

Order dated 22.09.2023 in C.C. No.345/2021 quashed; application under Section 45 Indian Evidence Act pending till completion of complainant evidence.

Mayur S/O. Shankar Shivapur Vs Basappa S/O. Siddappa… — Cheque Dishonour | Karnataka HC (2023)

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NC: 2023:KHC-D:12946 CRL.P No. 102640 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 6^TH DAY OF NOVEMBER, 2023 BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL PETITION NO. 102640 OF 2023

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BETWEEN:

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MAYUR S/O. SHANKAR SHIVAPUR, AGE. 33 YEARS, OCC. PHYSICAL TEACHER/AGRICULTURE, R/O. FARM HOUSE AT VIJAYANAGAR, AT POST. HALLUR, TQ. MUDALAGI, DIST. BELAGAVI-590121.

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… PETITIONER

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(BY SRI. A.M. GUNDAWADE, ADVOCATE FOR SRI. SANGAMESH S. GHULAPPANAVAR, ADVOCATE)

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AND:

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BASAPPA S/O. SIDDAPPA GOURANNAVAR, AGE. 38 YEARS, OCC. AGRICULTURE, R/O. BELAGALI, TQ. MUDHOL, DIST. BAGALKOT-590121.

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… RESPONDENT

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(BY SRI. M.C. HUKKERI, ADVOCATE)

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Digitally signed by VIJAYALAKSHMIM KANKUPPI VIJAYALAKSHMIM KANKUPPI Date: 2023.11.09 10:59:35 +0530

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. SEEKING TO ALLOW THE PRESENT PETITION BY QUASHING THE IMPUGNED ORDER DATED 22.09.2023, PASSED IN C.C.NO.345/2021, BY PRL. SENIOR CIVIL JUDGE AND JMFC COURT, MUDHOL, DISMISSING THE APPLICATION FILED BY THE PETITIONER U/S 45 OF INDIAN EVIDENCE ACT.

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

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NC: 2023:KHC-D:12946 CRL.P No. 102640 of 2023

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ORDER

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This petition is filed seeking quashing of the order dated 22.09.2023 passed in C.C.No.345/2021 by Principal Senior Civil Judge and JMFC Court, Mudhol.

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

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The respondent initiated the criminal proceedings against this petitioner for the offence punishable under Section 138 of the Negotiable Instrument Act (hereinafter referred to as the “N.I.Act”, for brevity). On the basis of the same, the case came to be registered against this petitioner in C.C.No.345/2021. It is the case of the petitioner/accused that he borrowed hand loan of Rs.9,00,000/- and for making repayment of the same, he has issued cheque for sum of Rs.9,00,000/dated 05.05.2020 (Ex.P.1). As the said cheque is dishonored on presentation for want of funds, as the petitioner/accused did not repay the cheque after receipt of notice, the complaint came to be initiated against this petitioner.

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3 - NC: 2023:KHC-D:12946 CRL.P No. 102640 of 2023

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During pendency of the proceedings after cross examination of P.W.1, an application came to be filed by the petitioner/accused under Section 45 of the Indian Evidence Act, praying to send Ex.P.1-cheque for scientific examination to expert for opinion.

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The respondent/complainant has filed

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objections to the said application. The trial Court after hearing the arguments passed order dated 28.09.2023 on that application in C.C.No.345/2021 and rejected the said application. The said order is sought to be quashed in this petition.

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The learned counsel for the petitioner/accused would contend that the respondent/complainant is stranger. There are no transactions between the petitioner and the respondent. He further contended that he has lost Ex.P.1-cheque and intimated same to the banker. He further contended that the signature on the Ex.P.1-cheque is not that of the petitioner and signature on Ex.P.1 is forged one. He further contended that signature on Ex.P.1-cheque is required to be compared with the

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NC: 2023:KHC-D:12946 CRL.P No. 102640 of 2023

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admitted signature of the petitioner to ascertain whether the signature or Ex.D.1-cheque is that of petitioner or not. The trial Court is erred in considering the said aspect and rejected the application.

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respondent/complainant would contend that the Court is expert of the expert and it can compare the signatures. He further contended that the trial Court has observed in para 11 of the order that the application is filed prior to the completing the cross examination of P.W.1 and petitioner/accused is given an opportunity to cross examine the P.W.1 and elicit the truth in the cross examination. He further submitted that completion of complainant’s evidence, the said application of the petitioner can be considered.

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The disputed cheque is at Ex.P.1. The alleged signature of the petitioner/accused on said cheque-Ex.P.1 is at Ex.P.1(a). The petitioner/accused has disputed the said signature at Ex.P.1(a). The petitioner in cross examination of P.W.1 has also suggested to P.W.1 that

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5 - NC: 2023:KHC-D:12946 CRL.P No. 102640 of 2023

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writing and signature on Ex.P.1 are made by the complainant. The petitioner/accused has got issued reply

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notice (Ex.P.10), wherein it is stated that the petitioner/accused has not issued the cheque and petitioner/accused has lost the cheque and intimated the same to the bank. In the said notice also the petitioner/accused has taken up the contention that there are no transactions between the petitioner and respondent.

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The petitioner/accused in the cross examination of P.W.1 has taken up defence that the Ex.P.1-cheque has been dipped into the chemical and colour of that ChequeEx.P.1 and colour of another cheque-Ex.D.1 are different.

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The said application under Section 45 of the Indian Evidence Act has been filed after part cross examination of P.W.1 and before completion of the cross examination. It is trite law that after completing complainant’s evidence, if accused disputes the signature on the cheque he can make application under Section 45 of the Indian Evidence Act to send cheque to compare the

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6 - NC: 2023:KHC-D:12946 CRL.P No. 102640 of 2023

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signature on the cheque with admitted signature of the accused. Even though learned Magistrate has observed that the application is filed before completion of cross examination of PW.1 in para 11 of the order but without any reasoning opined that Ex.P.1 is not colored cheque and it is original one and there is no necessity to send cheque in question for scientific examination. The learned Magistrate ought not to have made such a finding. The learned Magistrate ought to have postponed the passing of the order on the application till the completion of complainant’s evidence. In view of the above, the order dated 22.09.2023 passed in C.C.No.345/2021 on application filed by the petitioner/accused under Section 45 of the Evidence Act, requires to be quashed.

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In the result, the following:

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ORDER

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The petition is allowed.

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The order dated 22.09.2023 passed in C.C.No.345/2021 by Principal Civil Judge and JMFC, Mudhol, is quashed.

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7 - NC: 2023:KHC-D:12946 CRL.P No. 102640 of 2023

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The learned Magistrate has to keep the said application pending till the completion of the complainant side evidence and consider the same after the completion of complainant side evidence.

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The petitioner/accused has stated in his application in para 5 that the signature Ex.P.1 has to be compared with the signature of the accused on vakalath. The signature on the vakalath is subsequently made by the petitioner/accused. Therefore, the petitioner/accused has to secure the specimen signature given to his bank at the time of opening account or any other admitted signature made prior to the date of the cheque.

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AC CT:BCK List No.: 1 Sl No.: 26

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Sd/JUDGE

Mayur S/O. Shankar Shivapur v. Basappa S/O. Siddappa Gourannavar

Case brief

What is this about?

What did the court decide?

Mayur S/O. Shankar Shivapur v. Basappa S/O. Siddappa Gourannavar

Case brief

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What did the court decide?

What the court decided

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