HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MMO No. : 43 of 2010 Reserved On: 7.7.2010 Decided on: 26.7.2010 Rajiv Bansal ……… Petitioner. Versus Sunny Kumar ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the petitioner: Mr.Anand Sharma & Mr.Jagan Nath, Advocates. For the respondent: Mr.Karan Singh Kanwar, Advocate. V.K. Ahuja, J.: This is a petition filed by the petitioner under Section 482 of the Cr.P.C. against the order dated order, dated 3.2.2010, passed by the learned Judicial Magistrate Ist Class, Nahan, District Sirmaur, H.P. in Criminal Case No.122/3 of 2009/2007. 2. Briefly stated the facts of the case are that the petitioner filed a complaint under Section 138 of the Negotiable Instruments Act against the respondent before the learned Judicial Magistrate Ist Class, Nahan and the same was pending for 25.3.2010. The allegations so made were that the respondent had borrowed a sum of Rs.1,00,000/- from the petitioner on 27.1.2006 and the respondent issued a cheque of Rs.1,00,000/- drawn on Punjab National Bank, Nahan to discharge the liability. The petitioner deposited the said cheque in his account but the same was dishonoured on the ground of ‘funds insufficient’. The petitioner filed a _____________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - complaint in which preliminary evidence was recorded and notice was issued to the respondent. The evidence of the petitioner was recorded and the statement of respondent as accused under Section 313 of the Cr.P.C. was also recorded and the case was fixed for arguments. However, an application under Section 243 of the Cr.P.C. was filed by the respondent on 10.9.2009 by taking the plea that in the cheque, the amount was written by the petitioner himself. The respondent has not denied his signatures on the cheque, but denied the handwriting on the cheque. After consideration, the application was allowed by the learned trial Court with the direction that the cheque shall be sent to Forensic Science Laboratory/Handwriting Expert for comparison of the disputed writings on the same with regard to the date, amount and the name of the drawee with the signatures and also with the specimen signatures of the petitioner to be taken in the court in order to avoid any ambiguity with regard to the admitted signatures of the petitioner. The handwriting expert was also directed to determine the age of the signature of the accused on the cheque with the date of the cheque and the name of the complainant as well as amount written in the cheque. 3. Being aggrieved by the said order passed by the learned trial Court allowing the application, the present petition has been filed. 4. I have heard the learned counsel for the parties and have gone through the record of the case. - 3 - 5. The submissions made by the learned counsel for the petitioner were that the respondent had taken the plea that he had paid the amount to the petitioner but no receipt was returned back by the petitioner, which is a matter of evidence, if the amount was paid by the respondent to the petitioner or not. It was also urged during the course of arguments that under Section 20 of the Negotiable Instruments Act, where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instrument then in force and either wholly blank or having written thereon an incomplete instrument, that he thereby gives prima facie authority to the holder thereof to make or complete as the case may be, upon it a negotiable instrument. The order passed was, therefore, sought to be set aside. 6. On the other hand, the learned counsel for the respondent had supported the impugned order. 7. In support of his submissions, the learned counsel for the petitioner had relied upon the decision in Mojj Engineering Systems Ltd. & Ors. Vs. A.B. Sugars Ltd., 2009(3) Civil Court Cases 529 (Delhi). In that case, it was observed by a learned Single Judge of the Delhi High Court that if the cheque is undated at the time it was drawn, it does not mean that it was given without consideration. It was also observed that in a case of undated cheque, the cheque is deemed to be drawn on the date mentioned on the cheque and not on the date the undated cheque was handed over. It was also observed that in case of an undated cheque, drawer of an undated cheque gives a prima facie - 4 - authority to fill in the date. Even in the case of date on the cheque, it has been mentioned that it could be filled in and it is not necessary that it should be filled in by the drawer himself or it could be under the handwriting of drawer himself or other person. 8. Reliance was also placed upon the decision in Mangal Singh and Anr. Versus M/s Khurana Chemicals, 2007(1) Civil Court Cases 715 (Rajasthan), wherein it was observed that in case of dishonour of a cheque, when the accused did not dispute the handwriting on the cheque, opinion of the handwriting expert was not necessary. It was held that the application filed by the accused to that effect was rightly dismissed. 9. Another decision relied upon was in Babubhai Mulchanddas Kapadia versus Ishwarlal Devchand Kabrawala, AIR 1975 Gujarat 95, in which the following observations were made: “The Court has no power under Section 73 of the Act to direct a person present in Court to write, for the purpose of the writing being compared with a disputed document and to send the same to the Government Examiner of questioned documents for such comparison. xxxxxxxxx xxxxxxxxxxx In Rule 78 of Civil Manual (Gujarat) there is no provision enabling the court to take writings of a party or a witness in the presence of the Court with a view to supply the standard writings for comparison with the disputed writings.” 10. Section 20 of the Negotiable Instruments Act reads as under: “20.Inchoate Stamped instruments. – Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in India, and either wholly blank or having written - 5 - thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount: provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.” 11. It is, therefore, clear that once a negotiable instrument is signed and it an incomplete instrument, it gives a prima facie authority to the holder thereafter to make or complete as the case may be upon it a negotiable instrument for any amount specified therein. Thus, prima facie, it is clear that even a blank cheque, only with signatures, could have been given and it is for the court to draw a presumption in favour of either of the parties, as the facts may show. Therefore, no case is made out for directing the petitioner to give his specimen handwriting in the court and to send the same for comparison and the findings are to be given on the basis of the evidence led by both the parties. Moreover, the application was filed by the respondent at a belated stage, which did not warrant to be allowed. 12. In the present case, the respondent has also not disputed his signatures on the cheque and as such it is not necessary to send the petitioner’s admitted handwriting or specimen handwriting with those on the cheque for comparison. In case the cheque was for consideration or without consideration, this finding has to be given on the basis of the evidence led before the Court. The present - 6 - application was also filed by the respondent at the fag end of the case when the case was fixed for arguments. 13. In view of the above discussion, I accordingly hold that the impugned order passed by the learned Judicial Magistrate is liable to be set aside and the same is set aside accordingly. The record of the case shall be sent back to the learned trial Court for disposal in accordance with law. The parties are directed to appear before the learned trial Court on 16.8.2010. The Registry is directed to send the record of the case forthwith. July 26, 2010. (V.K. Ahuja), (TILAK) Judge