2018 (1) TMI 1693 - HC - Indian Laws

Dishonor of Cheque - blank cheque signed and obtained by petitioner as a security - rebuttal of presumption - it was contended that the said cheque was not passed for repayment of any existing liability - section 138 of NI Act - HELD THAT - The respondent No. 1 has neither issued any reply to the notice nor has entered into the witness box in his defence. The application for referring the subject cheque to the Handwriting Expert was filed on 13/04/2015 and shortly thereafter, the respondent No. 1 closed his side on 15/04/2015. The application does not mention as to under which provision, the same is filed. During the course of arguments at bar, the learned Counsel for the respondent No. 1 submitted that it is filed under Section 243(2) of Cr.P.C. Section 243 of Cr.P.C. speaks about the evidence for defence. Subsection (2) of Section 243 of Cr.P.C. provides that if the accused, after he had entered upon his defence applies to the Magistrate to issue any process for compelling the attendance of the witness for the purpose of examination or cross-examination or the production of any document or the other thing, the Magistrate shall issue such process unless he considers that such an application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such a ground shall be recorded by the Magistrate in writing. It can, thus, be seen that under subsection (2) of Section 243 of Cr.P.C., the accused can apply for issuance of process for compelling the attendance of any witness for the purpose as envisaged in the said section. In the present case, as noticed earlier, the respondent No. 1 had not entered into the witness box. This Court, in the case of Prakash Vora 2011 (1) TMI 1577 - BOMBAY HIGH COURT , after taking a survey of the various decisions holding the field and in an identical factual situation, has upheld the order rejecting the application for referring the cheque to the Handwriting Expert. This Court has found that when the application is made in a case of the present nature, for sending the cheque to the Handwriting Expert, the same has to be considered in the facts and circumstances of each case. On one hand, the accused has to be given fair opportunity to rebut the presumption, which is raised under Section 118 and Section 139 of the Act, however, on the other hand, it is the duty of the Magistrate to ensure that by filing frivolous application, the accused does not protract the trial. The impugned judgment and order passed by the learned Sessions Judge is hereby set aside - Petition allowed.

Summary

Issues:
Challenge to order referring disputed cheque to handwriting expert under Section 138 of Negotiable Instruments Act.

Analysis:
1. The petitioner filed a complaint under Section 138 of the Negotiable Instruments Act for dishonour of cheque. Respondent No. 1 applied to refer the disputed cheque to a handwriting expert, claiming it was a blank cheque obtained as security, not for repayment of any liability as required by the Act.

2. The Magistrate initially dismissed the application, stating it was an attempt to delay proceedings. However, the Sessions Judge allowed the application, leading to the present challenge under Article 227 of the Constitution and Section 482 of Cr.P.C.

3. The petitioner argued that respondent No. 1 did not dispute the signature on the cheque, nor entered the witness box, indicating a delay tactic. Citing legal precedents, petitioner contended that the Magistrate's decision was correct and should not have been interfered with.

4. Respondent No. 1 countered, stating the application was made promptly after the petitioner's evidence, seeking a fair chance to establish the defense of a blank signed cheque taken as security. Reliance was placed on a case where a similar application was upheld.

5. The Court noted that respondent No. 1 did not dispute his signature on the cheque and had not entered the witness box. The application was made under Section 243(2) of Cr.P.C., seeking evidence for defense, but the timing and purpose raised doubts regarding delay tactics.

6. The Court emphasized that the accused need not fill the entire cheque to raise presumption under the Act, but the application's intent to delay was crucial. The Sessions Judge's interference with the Magistrate's discretion was deemed unjustified.

7. Citing a previous case, the Court upheld the Magistrate's decision, emphasizing the balance between giving the accused a fair chance to rebut the presumption and preventing trial delays through frivolous applications.

8. The Court distinguished another case where the application was allowed without delay accusations, highlighting the importance of context in such decisions. Ultimately, the Sessions Judge's interference was deemed erroneous, and the Magistrate's order was restored.

9. The judgment clarified that observations were limited to the cheque referral issue, not influencing the complaint's merit evaluation by the Magistrate. The petition was allowed, setting aside the Sessions Judge's order and restoring the Magistrate's decision on the application.