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TMI Blog2009 (11) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... bond paper to the complainant, who has written thereon the amount etc. according to his choice and the writings in the cheque and the bond are not in his handwriting i.e., the date, the figures, etc., which have been written in a different ink and hence it is very much necessary to send the cheque and the blank bond paper for the opinion of the hand writing expert. According to the accused, the cheque and the bond paper have been mis-used by the complainant by entering a huge amount which he did not owe to the complainant. Objections were filed by the complainant to the application of the accused, wherein it was contended that the accused in order to return the hand loan has issued the cheque for Rs. 7,20,000/- in favour of the complainant and that the accused has also executed a promissory note and it is in order to discharge the hand loan, the cheque was issued, which was returned with an endorsement of the Bank "Insufficient funds". In the circumstances, it is not necessary to send the cheque and the bond paper for the opinion of the hand-writing expert. Learned Magistrate, for the reasons recorded by him, did not find merit in the application and dismissed the same. While dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties is not in dispute. It was pointed out that, suggestion was made to P.W.I to the effect that only Rs. 2,50,000/- is due by the accused and that as on the date of cross-examination the accused is ready to pay the amount of Rs. 2,50,000/-. It was pointed out that, while cross-examining P.W.2, suggestion made is to the effect that, the accused is due only Rs. 3,50,000/-. It was contended that, the accused having thus admitted the loan transaction, the dispute if any, being only with regard to the amount and the cheque issued towards discharge of debt being thus not in dispute, no case is made out for grant of relief, in view of which the application was dismissed, which was affirmed by the Revision Court and hence no case exits for interference Under Section 482 of Cr.P.C. Reliance was placed on a decision of this Court, in the case of H.M. Satish v. B.M. Ashok 2007(2) LJ 479. 6. In view of the rival contentions, the point for consideration is; Whether the Courts below have acted legally in declining to refer the cheque to an expert for examination? 7. In T. Nagappa v. Y.R. Muralidhar MANU/SC/7523/2008 : AIR 2008 SC 2010, the facts of the case which came up for consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ni Baskar v. M.S. Sampoornam 2007(1) SCC (Crl.) 577, the scope of the powers of the Magistrate Under Section 243 Cr.P.C. was examined. In the said case, a complaint was filed against Mrs. Kalyani Baskar and her husband for an offence Under Section 138 of the Act alleging that Mrs. Kalyani Baskar and her husband jointly signed and issued the cheque for discharging their liability but the said cheque got dishonoured due to "Insufficient funds" in the account. Since a complaint was filed, the accused appeared before the Magistrate and filed an application Under Section 245 Cr.P.C. raising inter alia preliminary objections that the accused had not signed the cheque nor issued it to the complainant and the cheque in question was drawn from the individual account of the accused and thereafter as alleged by the complainant, the appellant and her husband could not have jointly signed and issued her the cheque and the signature on the cheque may be sent for an expert opinion to ascertain the bonafides of the same and even otherwise neither the drawer of the cheque nor her husband owe any debt to the complainant. The Magistrate dismissed the application on the ground that the genuineness of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, Section 243(2) Cr.P.C. refers to a stage when the prosecution closes its evidence after examining the witnesses and the accused has entered upon his defence. The appellant in this case requests for sending the cheque in question, for the opinion of the hand writing expert after the respondent has closed her evidence, the Magistrate should have granted such a request unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. In the circumstances, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable. The facts in the present case are not materially different from those which were considered by the Apex Court in the decision supra. The ratio of law squarely applies to the present case. 9. In the case of H.M. Satish (supra), the case of the complainant was that, the accused had approached him and borrowed certain sum, issued a cheque which when presented was dishonoured and returned with an endorsement "Funds Insufficient" and thereafter a notice was issued to which a reply was sent stating that two cheque leaves had been lost and the complainant has mis-used the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed, requiring interference. 11. P.W.1 when cross-examined on 14/03/2008 has admitted that the amount involved in the case viz., Rs. 7,20,000/- was received by the accused on two occasions. According to him Rs. 4,00,000/-was paid on the first occasion and subsequently Rs. 3,20,000/- was paid, on which date, for the total amount, the promissory note was executed. He has stated that when the money was paid on the first occasion RW.2 was present. RW.2 has deposed that the accused had approached the complainant with a request to grant financial aid by way of hand loan amount of Rs. 7,20,000/-. Since it could not be arranged by the complainant in lumpsum, the complainant paid the accused an amount of Rs. 4,00,000/- on 29/04/2006 and after 15 days i.e., 15/05/2006, complainant paid Rs. 3,20,000/- to the accused as hand loan. According to him, the promissory note was executed in favour of the complainant on 15/05/2006 and during the last week of March 2008, he heard from the complainant that the accused issued cheque for discharge of the hand loan amount of Rs. 7,20,000/- and the same has been dishonoured in respect of which he has filed the case. P.W.2 during cross-examination, has adm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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