2023 (10) TMI 1356 - HC - Indian Laws

Dishonour of Cheque - It is the case of the present petitioner that when the impugned cheque is produced before learned trial court the petitioner denied signature on that cheque - HELD THAT - The criminal appeal was filed in the year 2019 against the judgment of conviction made in Criminal Case No.2005 of 2018. The petitioner came out with an application on 6.3.2023 for seeking relief for the opinion of the forensic expert about signature on the disputed cheque. It is important to note that an application Exh.38 was unsuccessfully moved by the petitioner before the learned trial Court. The order was never carried to challenge before higher Court. Moreover, the learned Session Judge has noted that no questions are raised to the complainant nor to the defence witness about signature on the disputed cheque. Thus, what appears that the petitioner by way of filing application Exh.35 aimed to prolong the proceedings of the criminal appeal. The petitioner remained silent for three years for moving such application even in the proceedings of the criminal appeal. Thus, it appears that the petitioner was thoroughly careless and negligent and now, under the pretext of one or another application, is trying to prolong the proceedings of the criminal appeal. Reply to statutory notice u/s 138(B) of the NI Act is first stage of prosecution where the accused can raise his defence. In the present case, learned advocate for the petitioner has failed to point out that the accused has raised defence at the relevant point of time when the opportunity was available and disputed that he has not signed the cheque. Thus, no case is made out to interfere with the impugned order under supervisory jurisdiction. Hence, present petition fails and stands dismissed.

Summary

Issues Involved:
1. Quashing of the order dated 25.7.2023 by the Principal Sessions Judge, Gandhinagar.
2. Rejection of the application to compare the petitioner's specimen signature with the signature on the impugned cheque.
3. Examination of the officer of the post office to prove non-receipt of notice.
4. Dismissal of the application for taking additional evidence at the appellate stage.

Summary:

Issue 1: Quashing of the Order Dated 25.7.2023
The petitioner sought to quash the order dated 25.7.2023 passed by the Principal Sessions Judge, Gandhinagar, which dismissed the application Exh.35 in Criminal Appeal No.153 of 2019. The petitioner argued that the learned Session Judge committed a gross error in dismissing the application, asserting that additional evidence was necessary to secure the ends of justice.

Issue 2: Rejection of the Application to Compare Signatures
The petitioner had borrowed Rs. 10,00,000 from the respondent and issued a cheque that was returned due to insufficient funds. The petitioner denied the signature on the cheque and filed an application on 13.06.2019 to compare his specimen signature with the signature on the cheque and sought a handwriting expert's opinion. The trial court rejected this application on the same day, citing the petitioner's mala fide motive to delay the proceedings.

Issue 3: Examination of the Officer of the Post Office
The petitioner also made an application to examine the officer of the post office to prove the non-receipt of notice sent by the respondent. The trial court did not examine the authenticity of the letter obtained from the post office by the respondent, which was considered while convicting the petitioner.

Issue 4: Dismissal of the Application for Additional Evidence
After being convicted in Criminal Case No.2005/2018, the petitioner filed Criminal Appeal No.153/2019 and an application Exh.35 under section 391 of the Code of Criminal Procedure, 1973, for taking additional evidence at the appellate stage. The learned Session Court dismissed this application, noting that the petitioner did not challenge the order passed below Exh.38 by the trial court and did not raise any questions regarding the signature on the cheque during the trial. The court believed that the petitioner's application was an afterthought to prolong the proceedings.

Court's Observations and Conclusion:
The court referred to various judgments, including Brigadier Sukhjeet Singh (Retired) MVC Vs. State of Uttar Pradesh and Ashok Tshering Bhutia Vs. State of Sikkim, emphasizing that additional evidence at the appellate stage is permissible only in exceptional cases where it serves the interests of justice. The court noted that the petitioner had not provided a valid reason for not challenging the order below Exh.38 and had been negligent in raising the issue of the signature on the cheque.

The court concluded that the petitioner aimed to prolong the proceedings and had not demonstrated that additional evidence was necessary for elucidation of the truth or for the pronouncement of the judgment. Therefore, the petition was dismissed in limine at the admission stage.