Prem Rathor Vs State of Uttarakhand

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HIGH COURT OF UTTARAKHAND AT NAINITAL

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Criminal Misc. Application U/s 482 No. 313 of 2024

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07^th March, 2025

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Prem Rathor …….Applicant

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Versus

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State of Uttarakhand & another ………Respondents

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Presence:-

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Mr. Ajay Joshi, Advocate for the applicant. Mr. B.C. Joshi, A.G.A. with Mr. S.B. Dobhal, B.H. for the State. Ms. Sheetal Selwal, Advocate for respondent no.2.

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Hon'ble Pankaj Purohit, J.

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This criminal misc. application has been filed under Section 482 Cr.P.C. challenging the order dated 19.12.2023, passed by learned I^st Additional District & Sessions Judge, Haldwani, District Nainital in Criminal Revision No.125 of 2023, Prem Rathor Vs. Prem Kumar and another and a further prayer for setting aside the order dated 13.04.2023, passed by learned II^nd Judicial Magistrate, Haldwani, District Nainital in Criminal Case No.3745 of 2021, Prem Kumar Vs. Prem Rathor, whereby the application dated 20.02.2023 of the applicant has been dismissed.

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Facts in a nutshell are that a case under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as “Act of 1881”) was filed by respondent no.2/complainant before the court of learned II^nd Judicial Magistrate, Haldwani, District Nainital. In that case the statement of complainant was recorded as PW1. During pendency of case, the accused moved an application on 20.02.2023, requesting therein to send the alleged cheque for conducting the forensic examination of the same before the Forensic Laboratory for the purpose

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of examining the veracity of the cheque. Against the said application the applicant also filed his objection on 23.03.2023.

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The learned court of IInd Judicial Magistrate, Haldwani, District Nainital vide its order dated 13.04.2023 rejected the application, moved by the accused on 20.02.2023 and the matter was directed to be fixed for further evidence.

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Against the aforesaid order dated 13.04.2023, accused preferred a revision being Criminal Revision No.125 of 2023 before the court of learned Sessions Judge, Haldwani, which was ultimately transferred to the court of I^st Additional District & Sessions Judge, Haldwani, District Nainital, who vide impugned judgment dated 19.12.2023 affirmed the order dated 13.04.2023, passed by the trial court and resultantly dismissed the revision.

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Challenging both the orders present C482 application has been filed.

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In the application moved by the applicant/accused, it was stated that in the questioned cheque, there has been manipulation in the digits of the amount and besides change in the amount is also quite visible. It was also stated that there had been an apparent difference in both the writings/signatures, which can only be determined by way of forensic examination. The accused even stated that he was ready to incur the money for sending the questioned cheque for the purpose of forensic examination. As against the aforesaid application, an objection was filed on behalf of

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the respondent no.2/complainant stating therein that the application has been moved by the applicant, just to linger on the proceedings. Hence the application is liable to be dismissed.

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In the opinion of this Court, the applicant has been denied his legal and valid right. The interest of justice demands that the accused should be afforded every reasonable opportunity of examining his evidence. If the accused has raised an objection regarding the digits mentioned in the impugned cheque and has also put a question mark to the signatures made therein, it was bounden duty of the trial court to send the cheque in question to the forensic laboratory. Moreover even the applicant has clearly stated in his application that he was ready to incur cost of sending the same to the laboratory.

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The revisional court has erred in law in not deciding this fact; depriving the applicant/accused of his legal right amounts to miscarriage of justice.

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It is trite that the accused is entitled to fair and speedy trial, in accordance with law, in the process of raising a bona fide and probable defence. It is case of the applicant all throughout that there had been no legal enforceable debt against him towards the complainant/respondent no.2.

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The Apex Court in the case of T. Nagappa Vs. Y.R. Muralidhar reported in (2008) 5 SCC 633 has observed as hereunder:-

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“7. When a contention has been raised that the

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complainant has misused the cheque, even in a case where a presumption can be raised under Section 118(a) or 139 of the said Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. As the law places the burden on the accused, he must be given an opportunity to discharge it .”

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The sum and substance of the aforesaid legal authority is that applicant is well within his right to be given an opportunity for adducing evidence keeping in mind the broader aspect of free and impartial trial.

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In view of what has been stated above the C482 application is allowed. Judgment and order dated 19.12.2023, passed by learned I^st Additional District & Sessions Judge, Haldwani, District Nainital in Criminal Revision No.125 of 2023, Prem Rathor Vs. Prem Kumar and another and order dated 13.04.2023, passed by learned II^nd Judicial Magistrate, Haldwani, District Nainital in Criminal Case No.3745 of 2021, Prem Kumar Vs. Prem Rathor are set aside.

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The application moved by the applicant/accused dated 20.02.2023 accordingly stands allowed.

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The trial court is directed to send the cheque in question to the Forensic Scientific Laboratory for the purpose of examining veracity of the digits as also the writings/signatures made thereon.

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The trial court is directed to proceed with the trial after receipt of such report. This exercise should be completed at the earliest possible.

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(Pankaj Purohit, J.) 07.03.2025

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SK

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Prem Rathor v. State of Uttarakhand

Case brief

What is this about?

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Prem Rathor v. State of Uttarakhand

Case brief

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