9911796707
TMI Blog2012 (4) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... led evidence and the statement of the accused/respondent under section 313 Cr. P.C. was also recorded. The case was at the stage of defence evidence of the respondent/accused. An application was filed by the accused under section 243(2) Cr. P.C. for examination of handwriting expert in order to prove that the cheque in question, which formed the basis of the said complaint, was neither signed by her nor had impression of her palm and fingers. The MM dismissed the said application vide his order dated 11.07.2011 observing that the accused/respondent had earlier filed an application under section 311 Cr. P.C. read with section 45 of the Evidence Act which was dismissed vide order dated 23.04.2011 and another application under section 45 and 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g expert was dismissed, had become final and the revision against the order dated 20.05.2011 was also dismissed as withdrawn; (iii) that the cheque in question was dishonoured for the reason 'insufficient funds' and not due to difference in signature of the drawer. The complainant also examined Branch Manager of the concerned bank of the drawer who identified the signatures of the respondent/accused and confirmed the same and that the cheque was dishonored for want of sufficient funds in the account and not for the reason of difference in signatures of the respondent; and (iv) that there was no necessity of examination of the handwriting expert as recorded in the order dated 23.04.2011 of the MM since the MM had himself compared the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the said order. 7. The case of Mrs. Kalyani Baskar (supra) though recognized the right of the accused to lead defence evidence of the handwriting expert, but that was in the situation when the accused appeared before the Magistrate and filed an application under Section 245 Cr.P.C. raising objection that the cheque in question was not signed or issued by her and that she did not owe any debt to the complainant. In the said case, the Banker had specifically stated that he did not verify the signature before returning the cheque as dishonoured. It was in these circumstances that the order of MM disallowing application under section 243 Cr.P.C. was held to be erroneous. The Hon'ble Supreme Court in this case held thus :- 10. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not been able to appreciate the view of the learned Judge of the High Court that the petitioner has filed application under Section 243 Cr.P.C. without naming any person as witness or anything to be summoned, which are to be sent for handwriting expert for examination. As noticed 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t some hand- writing expert be examined in order to find out the genuineness of the signature on Ext. C-4. As stated above, the cheque bounced not on account of the fact that the signature on Ext. C-4 was not tallying with the specimen signature of the appellant kept with the Bank, but on account of insufficient funds. Had the signature on Ext. C-4 been different, the bank would have returned the same with the remark that the signature on Ext. C-4 was not tallying with the appellant's specimen signature kept with the bank. The memos Ext. C-6 and Ext. C-8 issued by the bank clearly show that signature of the appellant on Ext, C-4 was not objected to by the bank, but the same was returned with the remark insufficient fund . This circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d variation in the signatures. The plea regarding the cheques not bearing her signature was taken by the respondent/accused only at the stage of defence evidence. 11. It is also noted that this Court on 19.03.2011 had directed the MM to dispose of the case expeditiously and vide order dated 10.08.2011 a specific direction was given for disposal of the case within a period of 8 months. From the above discussion I am of the view that since there was no infirmity or illegality in the order of the MM dated 11.07.2011, the learned ASJ erred in entertaining the revision petition and setting aside the said order of the MM. In view of all this the impugned order is set aside. The petition is disposed of accordingly. - - TaxTMI - TMITax - In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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