H.S Kathyayini Vs B Lakshmeesh

ENTIRE PROCEEDINGS IN C.C.NO.48/2024, REGISTERED BY THE V JMFC, MYSURU FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT, 1881 AGAINST THE PETITIONER.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA

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ORAL ORDER

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The petitioner is before this Court calling in question the order dated 15.03.2025, passed by the learned V J.M.F.C., at Mysuru, in C.C.No.48/2024, rejecting the application filed under Section 45 of the Indian Evidence Act.

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Heard Sri.Byre Gowda N., learned counsel

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appearing for the petitioner and Sri.Manjunatha R., learned counsel appearing for the respondent.

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Facts in brief germane are as follows:

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The petitioner is the accused and the respondent is the complainant. They two have a transaction with regard to exchange of an instrument for an amount of ₹10,00,000/-. The cheques presented for its realisation were returned for want of sufficient funds. The proceedings are instituted by the

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respondent/complainant under the Negotiable Instruments Act.

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The issue in the lis does not pertain to the merit of the claim of the petitioner or claim of the respondent or the defence of the petitioner. The petitioner files an application before the concerned Court under Section 45 of the Evidence Act to refer the signature for forensic examination in the light of it being in variance with the signatures obtained at the time of crossexamination and also the vakalath so filed. The said application comes to be rejected by the impugned order, the rejection of which has driven the petitioner to this Court in the subject petition.

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The learned counsel appearing for the petitioner would vehemently contend that the signature if compared with the vakalath and the cross-examination would clearly indicate that it is forged, therefore, the cheques ought to have been sent for forensic examination.

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Per contra, the learned counsel appearing for the respondent submits that a bare perusal at the cheque would not indicate any such tampering. Signatures here and there would necessarily vary from document to document, that would

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not mean that it should be sent for forensic examination. Moreover, the learned counsel submits that the application is preferred at the fag end of the proceedings, which the concerned Court has declined to accept.

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I have given my anxious consideration to the respective submissions made by the learned counsel and have perused the material on record.

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The afore-narrated facts are not in dispute. What drives the petitioner is the application filed by the petitioner for referring the matter for forensic examination under Section 45 of the Evidence Act. The concerned Court rejects the application by the following order :

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"The learned counsel for the accused has filed this application at the stage of accused side arguments, praying to send the Ex.P1 and 3 cheques to hand writing expert opinion to compare the disputed signatures in Ex.P1 and 3, admitted signature in vakalathnama and examination chief affidavit filed by the accused.

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2. In the application it is stated that, the complainant has filed the above case punishable under Section 138 of N.I. Act against the accused. It is submitted that, the Complainant has filed the

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above complaint to get unlawful gain from the Accused. The Accused rebut the Complainant by adduce her defense evidence. The Complainant has forged the signature of the accused. The Accused did not signed on the Ex.Pl and P3 cheques and also issued to the said cheques to the Complainant to discharge the liability. It is further submitted that, the Accused has denied her signature of Ex.P1 and P3 cheques. The said disputed signature on Ex.Pl and P3 are very much require to compare admitted signature of the Accused vakalathnama and chief evidence affidavit filed by the Accused through handwriting expert opinion to prove the Accused defense. As such the opinion of the handwriting expert report on the disputed signature Ex.P1 and P3 and admitted signature vakalathnama and chief evidence of the Accused is very much necessary to prove the Accused defense. It is further submitted that, during the course of cross examination of PW1 is specifically deny the signature in the Ex.Pl & P3 cheques. When the Accused taken very specific contention that, the Ex.P1 & P3 is forged signature by the Complainant is crucial document, as such the expert opinion with respect to signature found Ex.P1 & P3 is very much require. Hence this application. If this application is allowed no injury and hardship will be cause to the Complainant. Per contra if this application is not allowed the Accused will be put to great hardship and she is unable to defend her case properly, it will

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leads to multiplicity of proceedings. With all these contentions, prays to allow the application.

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3. Per contra, the learned counsel for the complainant has filed objection resisting the application stating that, 1. That the Impugned Application as brought by the Accused is not maintainable both in point of law and as well as on facts. The Accused is in the habit of filing application after applications with a view to drag-on the proceedings as far as possible and thereby to cause loss, trouble and inconveniences to the Complainant, which is not permitted under law. The said Applications have been rejected with cost. That the Impugned Application filed by the Accused is devoid of merits and the same is made with a view to gain the sympathy of this Hon'ble Court, if possible. It is pertinent to note that the Accused in her Examination-in-Chief at Para No.4 in Page No.3 has state as follows :-

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ದುರು�ೆ�ೕಶ�ಂದ ಸದ� ಚ� ಗಳ !ೕ"ೆ ನನ$ ಸ% &ೋಲುವಂ)ೆ*ೕ +ೕಜ��ಸ%-ಾ.ರು)ಾ/0ೆ ."

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Thus, the Accused clearly admitted in her Examination-in-Chief itself that her signatures on Ex.P-1 & Ex. P-3 resembles to her own signatures. Hence, the question of obtaining expert opinion is frivolous and does not arise for consideration. The question of forgery is to be proved and established

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independently by the Accused and not by seeking the opinion of the Expert, which is non-conclusive and not binding on this Hon'ble Court.

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Further, the Accused in her Cross-Examination at Page No.5 Para No.2 she has denied the suggestions put to her as follows:-

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“ 1� -1 ಮತು/ 1� -3 3ೆ4 5ಾನು ಸ% &ಾ6ದ�ರೂ &ಾ6ಲ7 ಎಂದು ಸುಳ9: ;ಾ< 3ೇಳ9=/�ೆ�ೕ5ೆ ಎಂದ0ೆ ಸ�ಯಲ7 . 5ಾನು 3ಾನೂನು >ೌಕ@Aನು$ ತ�BC3ೊಳ9:ವ ಸಲು�ಾ� ಸತD3ೆ4 ದೂರ�ಾ� ಸುಳ9: ;ಾ< &ೇಳ9=/�ೆ�ೕ5ೆ ನುಡು�ರು=/ರಎಂದ0ೆ ಸ�ಯಲ7 .”

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Likewise, the Accused in her CrossExamination at Page No.5 Para No.3 she has admitted the suggestions put to her as follows:-

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"313 ;ೆAೕF !ಂF ನG7 ಈ I>ಾರವನು$ &ೇಳಲು )ೊಂದ0ೆ ಇತ/ಎಂದ0ೆ ;ಾ<�ಾವK�ೇ )ೊಂದ0ೆ ಇರGಲ7 ಎಂದು ನು.ಯು)ಾ/0ೆ ”.

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Thus, from the above denial and admission in the Cross-Examination of the Accused i.e. Dw-1, it is crystal clear that the averments made in the Examination-in-Chief of Dw-1 as stated above is an after thought with a view to escape from the clutches of law by hook or crook. It is submitted that as per the established principles of law laid down by our Hon'ble High Court of Karnataka and as well as by our Hon'ble Supreme Court it is clear that an opinion of an expert remains as an opinion only and it is a non-conclusive one. That this Hon'ble Court under section 73 of the Indian Evidence Act can compare

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the signatures on Ex. P-1 and Ex. P-3 with the admitted signatures of the Accused on the Postal Acknowledgment, Vakalath and on her deposition and can come to its own conclusion. Hence, the question of sending Ex. P-1 & P-3 to the handwriting expert opinion to compare the disputed signatures in Ex.P-1 and Ex. P-3 with the admitted signature in Vakalathnama and examination chief affidavit by the Accused does not arise. Hence, the illegal intention of the Accused to drag-on the proceedings as for as possible is to be curtailed by this Hon'ble Court by exercising the power vested with it under section 73 of the Indian Evidence Act. Viewing from any angle the Impugned Application is merit less deserves to be thrown out at the earliest. With all these contentions, prayed to dismiss the application.

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4. Heard both side Counsel and perused the materials on record.

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5. The following points that arise for consideration of this Court:

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1. Whether the applicant/accused has made out sufficient grounds to allow the application ?

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2. What Order ?

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6. On the basis of materials available on record, this Court answers the above points are as follows:

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Point No. 1 : In the Negative Point No.2 : As per the final order for the following:

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REASONS

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7. Point No.1: This court has gone through the entire materials available on record. The above case filed against the accused for the alleged offence punishable under section 138 of N.I Act. Now the case is at the stage of accused side arguments.

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8. The learned Counsel for the accused has argued that signatures seen on the Ex.P1 to 3 are not of accused. Matter has reached the stage of arguments on 01.02.2025. On 06.02.202 counsel for accused has filed application U/sec.311 of Cr.P.C. and said application is dismissed. Again matter was posted arguments on 20.02.2025. After hearing the arguments of complainant matter was posted for accused side arguments. At that stage, counsel for accused has come up with application U/sec. 45 of Indian Evidence Act. Prior to this application accused has also filed application U/sec.91 of Cr.P.C. and same was also dismissed by this Court. On perusal of order sheet, it is seen that whenever the matter was reached the stage of arguments, accused is filing one or the other applications and causing hurdle to the case.

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9. Further it is pertinent to mention Oriental bank of commerce V/s. Pramod Kumar Tiwari wherein Hon'ble Apex Court has held that,

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"For such a determination, the fact that, the details in the cheque have been filled up not by the drawer, but by some other person would be

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immaterial. The presumption which arises in the signing of the cheque cannot be rebutted merely by the report of a hand-writing expert. Even in the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability"

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By placing reliance on the above judgment, this court comes to conclusion that, in order to rebut the presumption under Section 139 of NI Act, it is not necessary for accused to go for expert opinion.

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10. Further accused remained silent during her statement under section 313 Cr.P.C. and has not stated anything as to the signatures seen on the cheques are not of her. Further, this court cannot depend upon opinion of expert for adjudicating this matter. In NI Act cases, it is necessary that, the cheque shall be issued and same shall belongs to the accused and endorsement from the bank and issuance of the notice shall be proper. Except this none other things comes for adjudication. NI Act cases are summary cases which shall be completed within 6 month. This matter is of 2024. Accused herein has come up with this application at the stage of accused side arguments. This shows that, accused in order to fill up lacuna in her defense evidence, she has come up with this application.

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11. Further, complainant counsel has submitted his arguments. While submitting his arguments, counsel for complainant submitted that,

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accused herein has denied the signature but not opted for FSL. This shows that, after hearing the arguments of complainant side, accused has come up with this application. In cases under section 138 of N.I. Act, it is not necessary for accused to enter into witness box to rebut the presumption as noted by one of judgment of Hon'ble Apex Court. Accused can rebut the presumption by cross-examining the complainant and with the help of documents available on record. Accused cannot collect the evidence by filing application U/sec.91 of Cr.P.C. or application U/sec.45 of Indian Evidence Act.

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12. This court certainly take the judicial notice of facts that the signatures and other writings in the cheques. Interestingly, the endorsement of the bank has come as "funds insufficient", if defense of the accused is considered to be true for a while, the endorsement of bank would have come that, "signature differs" or "signature incomplete". The accused has come up with application only to drag the proceedings. For the aforesaid reasons and after having careful perusal of the pleadings adduced on record as well as defence set up by the accused, this court inclined to answer the above point No.1 in the Negative.

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13. Point No.2: For the reasons discussed above, this court proceeds to pass the following:

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ORDER

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The application filed by the accused under section 45 of Indian Evidence Act is hereby dismissed with cost of Rs.1,000/-.

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The observations made in the disposal of this application is very much confined to the disposal of this application only. Neither of parties are permitted to take the benefit of any observations made in this order during the course of proceedings."

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The cheques are appended to the petition. The name and signature in the cheque, the signature in the vakkalath or the signature in the examination-in-chief, to the eye of this Court, does not find any variance, except a stroke here and there. For a stroke here and there, it is not necessary for the forensic examination, that too, when the cheque is admitted and the amount is admitted. The law in this regard is too well settled, as Section 45 is not the right of the accused or the complainant to claim. It is for the Court under Section 45 read with Section 73 of the Indian Evidence Act, if a doubt is generated with regard to the writings on the cheque, to refer it. It is in exceptional cases the applications are allowed. That exception I do not find in the case at hand.

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