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TMI Blog2019 (9) TMI 1742X X X X Extracts X X X X X X X X Extracts X X X X ..... the conviction whatever the offence has been faced by the accused and also put on trial. But Sections 45 and 73 of the Act, 1872, it is referred relating to the opinion report secured by the competent person otherwise to see an expert relating to the disputed cheque at Ex. P-1 subjected for examination and to give the opinion report regarding the age of ink. But the said application came to be rejected by the Court below in C.C. No. 709/2014 and the same has been challenged under this petition by urging the various grounds - the disputed cheque at Ex. P-1, relating to the age of ink, signature and contents found on the said cheque, is required to be examined by the handwriting expert and a report to be secured by the Forensic Science Laboratory. Therefore, it is said that the petition requires to be considered keeping in view the aforesaid relevant provision of Section 293 of Cr.P.C. Based upon the relevant provision of Sections 293(1) and 293(4)(c) of Cr.P.C., having an authority to examine the disputed cheque relating to the age of ink and also signature, contents of writing found on the cheque, which got marked as Ex. P1 in the aforesaid case be adjudicated between the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt. The cheque has been presented by the respondent-complainant for encashment, but the said cheque was dishonoured with an endorsement "insufficient funds in the account of the account holder". Subsequently the respondent-complainant initiated the proceedings against the accused for the offence punishable under Section 138 of N.I. Act. Subsequent to initiation of the proceedings in C.C. No. 709/2014, the complainant has examined himself as PW1 and was also marked several documents in order to prove the guilt of the accused for the aforesaid offence. After closure of the evidence on the parts of the complainant, the case was set down for recording the incriminating statement as contemplated under Section 313 of Cr.P.C. and subsequent to recording statement, the case has been set down for defence evidence. In the meanwhile of the proceedings between the complainant and the accused in C.C. No. 709/2014, the petitioner filed an application under Sections 45 and 73 of the Indian Evidence Act seeking to refer Ex. P1-Cheque for scientific investigation to ascertain the age of ink found on the cheque. As this contention was taken by the petitioner-applicant before the trial Court; the Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g expert to ascertain the age of ink, signature and other contents found on the cheque. 5. Lastly, the learned counsel for the petitioner submits that even though the application filed by the petitioner-accused under Sections 45 and 73 of the Indian Evidence Act, dismissed by the trial Court is not sustainable and also erroneously given a finding. Therefore, in this petition interference is required to the impugned order passed by the trial Court in C.C. No. 709/2014 of having rejected the application filed by the applicant-accused under Sections 45 and 73 of the Indian Evidence Act. Even to the extent of technicality of filing the application under Sections 45 and 73 of the Indian Evidence Act, there is a scope for filing the application by the applicant, supposed to be either of parties in a proceedings initiated; but in the instant case, an application under Sections 293(1) and 293(4)(c) of Cr.P.C., the disputed document i.e., Ex. P1-cheque is requires to be referred to the hand writing expert in order to ascertain the age of the ink and so also the contents of writing on the cheque. The same is requires to be examined by the experts and issue opinion report and that the report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Sections 45 and 73 of the Indian Evidence Act. The trial Court has assigned the justifiable reasons to reject the said application filed by the applicant said to be an accused, but the disputed cheque at Ex. P1 even though it has been referred to the hand writing expert only for securing the opinion report as he being an expert, but the accused himself has admitted the cheque, contents on the cheque and also the age of ink during the course of trial and otherwise to say, the complainant said to prosecute the case against the accused. Therefore, in this petition, does not arise for call for any interference of the impugned order passed by the Court below for having rejected the application filed by the applicant-accused under Sections 45 and 73 of the Indian Evidence Act. The Court below has assigned justifiable reason and therefore, the impugned order does not arise for call for any interference even though various grounds have been urged by the learned counsel for the petitioner in this petition. These are all the contentions taken by the learned counsel for the respondent-complainant and seeking for rejection of the petition filed by the petitioner by confirming the order pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of handwriting or finger impressions are relevant facts. Such persons are called experts. 73. Comparison of signature, writing or seal with others admitted or proved.--In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section applies also, with any necessary modifications, to finger-impressions. 8. The accused alleged to issue cheque at Ex. P1 and the when the said cheque presented by the complainant for encashment in the Bank, the same was returned with an endorsement issued by the Bank as 'funds insufficient in the account of the account holder'. Subsequently, the pre-cognizance arise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpert relating to the disputed cheque at Ex. P-1 subjected for examination and to give the opinion report regarding the age of ink. But the said application came to be rejected by the Court below in C.C. No. 709/2014 and the same has been challenged under this petition by urging the various grounds. The same has been referred supra. Mere because technically the provision has been quoted by the applicant - accused before the Court below seeking to refer the disputed cheque Ex. P-1 relating to the age of ink, signature and writing found on the cheque, it cannot be a ground to reject the application filed by the applicant-accused, who is arraigned as petitioner herein, but the relevant provision under Sections293(1) and 293(1)(4)(c) of Cr.P.C. regarding subjecting the disputed cheque for examination or analysis and securing the report under this Court, it may be used as evidence in any enquiry, trial or other proceedings. However, the case in C.C. No. 709/2014, the accused is required to facing up of a trial for the offences punishable under Section 138 of the N.I. Act. Therefore, the disputed cheque at Ex. P-1, relating to the age of ink, signature and contents found on the said cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 709/2014 stands allowed even to the scope and object of Sections 293(1) and 293 (4) (c) of Cr.P.C. (iii) The consideration of the said application filed by the applicant - accused are concerned, it is relevant to stipulate the condition, such as, the Trial Court in C.C. No. 709/2014 shall secure both the complainant and the accused and in their presence, the disputed cheque at Ex. P-1 shall be forwarded to the concerned Forensic Science Laboratory for the purpose of examination or analysis and with a direction to submit the report to the Court in a sealed manner. (iv) The Trial Court in C.C. No. 709/2014 is directed to fix the expenditure on the petitioner - accused for sending the disputed cheque Ex. P-1 for examination or analysis from the concerned FSL wherever he desire, as maintained by the Government. (v) The case in C.C. No. 709/2014 is of the year 2014. Therefore, the Trial Court shall expedite the case on merits in accordance with law. However, it is made clear that whatever the observations made by this Court in this order shall not influence the mind of the Court while disposing of the case and shall be disposed of on merits. Consequence upon disposal of the m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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