Allowed

Brigadier a G Bhaskar Singh v. Sri. T v Venugopal

Karnataka HC18 Jan 2024CRL.P/12060/2022

Case brief

AI extract

What is this about?

In a Section 138 NI Act complaint, the accused sought FSL examination of the cheque leaf's age before cross-examining the complainant. The High Court held the application premature since no defence had been opened, set aside both orders allowing the reference, and kept the application open with liberty.

What did the court decide?

Orders allowing the Section 45 Evidence Act application (trial court and Sessions revision) set aside; application kept open with liberty to press after defence evidence.

Brigadier a G Bhaskar Singh Vs Sri. T v Venugopal — Cheque Dishonour | Karnataka HC (2024)

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1 - NC: 2024:KHC:2489 CRL.P No. 12060 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE K.NATARAJAN CRIMINAL PETITION NO. 12060 OF 2022

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BETWEEN:

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BRIGADIER A.G. BHASKAR SINGH S/O LATE. A.R.GOVIND SINGH, AGED ABOUT 85 YEARS, R/AT BHUGATHAHALLI VILLAGE, VAJAMANGALA POST, MYSURU - 570 028.

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…PETITIONER

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(BY SRI. MURALIDHARA S., ADVOCATE)

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AND:

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SRI. T.V.VENUGOPAL S/O VENKATESHA, AGED ABOUT 45 YEARS, R/AT NO.628, TURUGANURU VILLAGE, BANNUR HOBLI, T.NARASIPURA TALUK, MYSURU DISTRICT - 571 124.

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Digitally signed by VEDAVATHI A K Location: High Court of Karnataka

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ALSO AT: NO.480,VINAYA MARGA, (NEAR OCCASION'S STORE) INFRONT OF VINAYAKA TEMPLE, SIDDARTHANAGAR, MYSURU - 570 011.

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…RESPONDENT

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(BY SMT. THEJASHWINI G., ADVOCATE FOR SRI. SRINIVAS V., ADVOCATE)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED BY THE HONOURABLE PRINCIPAL DISTRICT AND SESSIONS JUDGE, MYSURU IN CRL.RP.NO.199/2021 DATED 15.07.2022 AND THE ORDER PASSED BY THE V ADDITIONAL CIVIL JUDGE AND J.M.F.C., MYSURU IN C.C.NO.964/2019 DATED 27.09.2021 ON THE APPLICATION FILED BY THE RESPONDENT HEREIN U/S 45

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NC: 2024:KHC:2489 CRL.P No. 12060 of 2022

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OF INDIAN EVIDENCE ACT AND THEREBY TO REJECT THE SAID APPLICATION U/S 45 OF THE INDIAN EVIDENCE ACT.

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

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ORDER

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This petition filed by the petitioner/complainant under

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Section 482 of Cr.P.C., to set aside the order passed by the Principal District and Sessions Judge, Mysuru in Crl.R.P.No.199/2021 dated 15.7.2022 and for quashing the order in C.C.No.964/2019 dated 27.9.2021 by V Addl. Civil Judge and JMFC, Mysuru for having allowed the application filed by the respondent/accused under Section 45 of Indian Evidence Act.

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The case of the petitioner is that the petitioner filed the complaint against the respondent for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act") alleging that the accused issued the cheque in the year 2017, which was dishonoured. Hence, complaint came to be filed after issuing the legal notice. The accused appeared before the court and pleaded not guilty. Hence, the case was posted for recording of the evidence of the complainant. Accordingly, the complainant/petitioner examined

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3 - NC: 2024:KHC:2489 CRL.P No. 12060 of 2022

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in chief and marked the documents including the cheque in question. At this stage, the accused filed an application for referring the cheque to the FSL to find out the age of the "cheque leaf" which was allowed by the Trial Court and later the same was challenged before Sessions court in revision, which also came to be dismissed. Hence the petitioner is before this court.

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Learned counsel for the petitioner submits, the respondent in the reply notice has admitted issuance of cheque. However he has taken contention the cheque was issued in the year 2014 and not in 2017. But the Trial Court referred the cheque to know the age of the cheque leaf, which is not correct. Even the defense was not opened by the accused by cross examining the P.W.1 and he has not lead any evidence and statement under Section 313 Cr.P.C., was not recorded. Such being the case, passing the order is not correct. Hence, prayed for setting aside the order.

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Per contra, learned counsel for respondent supported the order of both the court and contended that the defense was taken by the accused in the written reply to the legal notice

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NC: 2024:KHC:2489 CRL.P No. 12060 of 2022

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that cheque was issued in 2014 and the petitioner was manipulated the cheque in the year 2017 and filed the same before the bank for presentation. Therefore, in order to know the age of the cheque leaf, it is necessary for carbon test of the cheque leaf. Hence, prayed for dismissing the petition. Hence the petitioner is before this court.

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Having heard the arguments and perused the record, the complaint came to be filed by the petitioner against respondent for dishonour of the cheque, said to be issued by the accused in the year 2017. The accused taken defense in the reply that cheque was issued in the year 2014, but he has admitted the issuance of the cheque. However, the P.W.1 who is the complainant examined in part and he has not been cross examined by the accused counsel that defense is not yet open by cross examination of the complainant. Thereafter, the respondent/accused also not made any defense evidence by disputing the alleged cheque and the age of the cheque or age of the ink found and the hand writing of the cheque. Such being the case, it is premature for referring the cheque leaf to the FSL for getting opinion. The accused cannot set up the defense after getting the FSL opinion or expert opinion, it is

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NC: 2024:KHC:2489 CRL.P No. 12060 of 2022

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noting but collecting evidence. He has to open his defense, thereafter in order to prove the same , he can file any such application in the later stage, not at this stage. Such being the case, the order under challenge is liable to be set aside

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Accordingly, the petition is allowed

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The order of the Trial Court referring the cheque to the FSL by allowing the application under Section 45 of Indian Evidence Act, in C.C.No.964/2019 passed by V Addl. Civil Judge and JMFC, Mysuru, is hereby set aside. The application is kept open.

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However the liberty is granted for the accused to press the application after taking such defense, after recording the evidence of the respondent and cross examination of the parties. The trial court can consider the same in accordance with law.

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Sd/JUDGE

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AKV List No.: 1 Sl No.: 43 CT:SK

Brigadier a G Bhaskar Singh v. Sri. T v Venugopal

Case brief

What is this about?

What did the court decide?

Brigadier a G Bhaskar Singh v. Sri. T v Venugopal

Case brief

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What did the court decide?

What the court decided

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