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SCR.A/1749/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1749 of 2011
=========================================
MEMON
RAZAKBHAI GULABBHAI - Applicant(s)
Versus
JANMOHAMMED
IBRAHIMBHAI MEMON & 1 - Respondent(s)
=========================================
Appearance :
MR
DAIFRAZ HAVEWALLA for
Applicant(s) : 1,
None for Respondent(s) : 1,
MR. L.B. DABHI,
ADDL. PUBLIC PROSECUTOR for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 03/08/2011
ORAL
ORDER
1.0. Present
Special Criminal Application under Article 227 of the Constitution of
India has been preferred by the petitioner-original accused of
Criminal Case No.2618 of 2006 to quash and set aside the impugned
order dated 20.5.2011 passed by the learned Sessions Judge,
Sabarkantha at Himatnagar passed in Criminal Revision Application
No.61 of 2010 as well as order passed by the learned 2nd
Additional JMFC, Himatnagar passed below Exh.69 in Criminal Case
No.2618 of 2006 by which the application submitted by the petitioner
to refer/ send the cheque in question to the Hand Writing Expert for
verification of the contents in the cheque in question has been
rejected.
2.0. A
criminal case has been instituted against the petitioner in the Court
of learned JMFC, Himatnagar for the offence punishable under Section
138 of the Negotiable Instruments Act, 1881 for return of the cheque
in question. That during the course of the trial, the petitioner
submitted the application for referring / sending the cheque in
question to the Hand Writing Expert / FSL for verification of the
contents in the cheque submitting that on the cheque the signature is
that of the petitioner but the contents of the cheque in question is
not written by him and is by some other persons. It was the case on
behalf of the petitioner that blank cheque was given to the
complainant towards the security. That the learned trial Court by
order dated 10.6.2010 dismissed the said application by observing
that the petitioner has entered into the settlement at Exh,69 and
agreed to pay the amount and the petitioner has not acted as per the
same and that evidence on behalf of the complainant is over and that
the petitioner has admitted the signature on the cheque. Being
aggrieved and dissatisfied with the order passed by the learned trial
Court passed below Exh.69 passed in Criminal Case No.2618 of 2006,
the petitioner accused has preferred Criminal Revision Application
before the learned Sessions Court, Sabarkantha at Himatnagar being
Criminal Revision Application No.61 of 2010, which came to be
dismissed by the learned Sessions Judge, Sabarkantha at Himatnagar by
impugned judgment and order dated 20.5.2011. Being aggrieved and
dissatisfied with the order passed by both the Courts below in
rejecting the application submitted by the petitioner to refer / send
the cheque in question to the FSL, petitioner-accused has preferred
the present Special Criminal Application under Article 227 of the
Constitution of India.
3.0. Shri
Havewalla, learned advocate for the petitioner has vehemently
submitted that both the Courts below have materially erred in
rejecting the application submitted by the petitioner to refer the
cheque in question to the FSL. It is submitted that as such from the
very beginning the case on behalf of the petitioner was that the
blank cheque was given to the complainant as a security and the
contents in the cheque in question are not written by the petitioner.
Therefore, it is submitted that a reasonable opportunity ought to
have been given to the petitioner to defend himself. Relying upon the
decision of the Hon’ble Supreme Court in the case of T.Nagappa v.
Y.R. Muraidhar reported in
(2008) 5 SCC 633, it
is requested to allow the present Special Criminal Application.
4.0. Heard
learned advocate Shri Havewala, for the petitioner and
considered the impugned order passed by both the Courts below in
rejecting the application submitted by the petitioner -accused to
send / refer the cheque in question to the FSL/ Hand Writing Expert.
At the outset, it is required to be noted that as such the petitioner
has admitted the signature on the cheque in question. It is also not
in dispute that petitioner had in fact given the cheque in question
to the complainant. As held by this Court in the case of Hitenbhai
Parekh Proprietor-Parekh Enterprise v. State of Gujarat reported
in 2009(3) GLH 742,
it will always be open for the holder of the cheque to fill in the
blanks in its own handwriting and there is an implied authority for
the person receiving such cheque to complete it by filling blanks.
When a cheque has been issued and signed by the party there is always
a presumption with respect to legal debt as per Section 139 of the
Negotiable Instruments Act, 1881. Of course, the same is rebuttable
by leading evidence that there was no debt for which the cheque was
issued and/ or cheque amount has been repaid. When a pointed question
was asked to the learned
advocate for the petitioner that assuming that it is found that the
contents in the cheque is not in the handwriting of the petitioner
and / or same is in the handwriting of the complainant what would be
effect on the merits of the case and / or still the petitioner is
required to rebut the presumption with respect to the debt, learned
advocate for the petitioner has no answer. Under the circumstances
and more particularly when the petitioner has admitted the signature
on the cheque and he has also admitted that the cheque in question
was given to the original complainant, considering the decision of
this Court referred to hereinabove, it cannot be said that both the
Courts below have committed any error and/ or illegality in
dismissing the application submitted by the petitioner to refer/ send
the cheque to the FSL and/ or Handwriting Expert.
5.0. Now,
so far as reliance placed upon the decision of the Hon’ble Supreme
Court in the case of T.Nagappa (Supra)
is concerned, on facts the said decision would not be of any
assistance to the petitioner. In the case before the Hon’ble Supreme
Court the accused requested to refer the cheque in question for
examination by the Director of FSL for determining the age of his
signature and that is not the case here. Under the circumstances on
facts the said decision would not be of any assistance to the
petitioner.
6.0. In view of
the above and for the reasons stated above, petition fails and same
deserve to be dismissed and is accordingly dismissed.
(M.R.SHAH,
J.)
kaushik
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