apl.240.11 1/8 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application [APL] No.240 of 2011 (Mohd. Saliq s/o Abdul Sattar vs. Sheikh Ashpaq s/o Sheikh Moosa and another) Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. Mr. V.M. Deshpande, Counsel for the Applicant. None for Non-Applicant No.1. Mr. M.J. Khan, A.P.P. for Non-Applicant No.2. CORAM : PRASANNA B. VARALE, J PRASANNA B. VARALE, J. DATE : AUGUST 23 , 2011. , 2011. Heard learned Counsel for the respective parties. By the present application, the applicant is challenging the order passed by the learned Adhoc Additional Sessions Judge, Khamgaon in Criminal Revision No.42 of 2010 on 17/03/2011 and the order passed by the learned Judicial Magistrate First Class, Shegaon below Exh.80 in Summary Criminal Case No.125 of 2006 on 11/06/2010. The applicant is the accused in the proceedings initiated by non-applicant no.1/complainant under Section 138 of the Negotiable Instruments Act. It is the case of the complainant that the relations between non-applicant no.1/ complainant and the applicant/accused were cordial and friendly and as the applicant was in need of money, he requested non- applicant no.1 to advance an amount of Rs.40,000/- by way of hand loan. Non-applicant no.1 arranged for the amount from his apl.240.11 2/8 relative and advanced the same to the applicant. The applicant agreed to repay the amount on or before 21/02/2006 or whenever the same is demanded by non-applicant no.1. Non- applicant no.1 then approached the applicant on 21/02/2006 and made a demand to which the applicant requested for two installments for payment of the amount i.e. first installment of Rs.35,000/- by way of a bearer cheque and the second installment of Rs.5000/- to be paid on or before 22/03/2006. The applicant issued cheque of Rs.35,000/- towards first installment. Non-applicant no.1 then deposited the cheque for encashment and the same was returned with the memo issued by the bank that the cheque is dishonoured for the reason “Funds Insufficient”. Non-applicant no.1 then issued a legal notice to the applicant for payment of cheque amount within stipulated period of 15 days. The notice was duly received by the applicant. In spite of receiving the notice, the amount was not repaid and as such non-applicant no.1 had no option but to approach the learned Judicial Magistrate First Class, Shegaon by filing Complaint No.125 of 2006. The proceedings were initiated and proceeded under the provisions of the Negotiable Instruments Act for issuance of process, recording of plea of the accused etc. The complainant on his behalf examined three witnesses and closed his evidence. The statement of the applicant under Section 313 of the Code of apl.240.11 3/8 Criminal Procedure was recorded. The matter was posted for the evidence on the defence side. It is the case of the applicant that during the pendency of the proceedings, the applicant moved an application for sending the cheque to handwriting expert as it was the case of the applicant that the cheque in dispute was never issued by the applicant. The application moved by the applicant was rejected. Against the said order, a revision was carried and the Revisional Court dismissed the revision on 08/10/2008. The applicant then moved an application for calling official from the Bank for his examination with directions to bring bank register and specimen signatures of the applicant/accused. The said application was rejected vide order dated 11/06/2010 by the learned Magistrate. Being aggrieved by the said order, the applicant preferred a revision before the learned Adhoc Additional Sessions Judge, bearing Criminal Revision Application No.42/12010. The revision was also dismissed with costs. Being aggrieved by the said orders passed by the learned Magistrate as well as the learned Additional Sessions Judge, the applicant is before this Court by way of present application under Section 482 of the Code of Criminal Procedure. Learned Counsel for the applicant submitted that both the Courts below erred in rejecting the applications filed by the applicant. The learned Counsel for the applicant submitted apl.240.11 4/8 that the applicant had never issued the cheque. On the contrary it was a specific stand of the applicant that he had submitted an application to the bank stating therein that a blank cheque bearing no.073917 was stolen by somebody and applicant no.1/ complainant is misusing the said cheque. The learned Counsel for the applicant further submitted that in view of the defence raised by the applicant, the learned Court below ought to have considered the application and permitted the applicant to examine the bank employee/official in support of his stand. The learned Counsel further submitted that rejection of the application by the learned Magistrate and confirming the order of the Magistrate by the Revisional Court causes a serious prejudice to the applicant. Perusal of the documents, particularly the order passed by the learned Magistrate, dated 11/06/2010, shows that the applicant had filed an application for referring the cheque to the handwriting expert, but the said application was rejected. Though a revision was filed challenging that order, the same was also dismissed. Heard the learned Counsel appearing for the applicant and learned A.P.P. I have gone through the documents placed on record. As the controversy involved in the present matter relates to the dishonour of cheque, calling an action under Section 138 of the Negotiable Instruments Act, details of apl.240.11 5/8 transactions between the parties, complaint filed for issuance of cheque and dishonour of the same are already referred, the same are not repeated again. The perusal of the documents shows that on filing the complaint before the learned Magistrate, the process was issued, the complainant as well as three witnesses on his behalf were examined, the complainant closed his evidence, the statement of the applicant under Section 313 of the Code of Criminal Procedure was recorded and the matter was posted for the defence evidence. It is not in dispute that the applicant had filed an application for sending the cheque in question to handwriting expert regarding his signature. It is also not in dispute that it was not the defence of the applicant that the cheque is not signed by him. The perusal of the documents further shows that on closure of the evidence of the complainant and after recording the statement of accused under Section 313 of the Code of Criminal Procedure, the applicant/accused filed application [Exh.60] for sending the cheque in dispute to handwriting expert. The application was rejected on 27/04/2009 by the learned Magistrate. The revision was referred against the order of the Magistrate and the same was also dismissed by the learned Additional District Judge, Khamgaon on 03/07/2009. The applicant then filed Writ Petition No.2794/2009 challenging this order and the same was also dismissed by this Court on apl.240.11 6/8 15/04/2010. The applicant thereafter filed an application for calling upon the bank employee to be examined with direction to produce the record. Though on the same ground the application for referring the cheque in dispute was preferred and rejected by the Court of Magistrate as well as in the revision and lastly in the writ petition, raising the same ground the applicant had moved application [Exh.,80] for issuing witness summons to the employee of Janata Commercial Co-operative Bank, Khamgaon, Branch Shegaon. The learned Magistrate, on considering this aspect as well as considering the fact that the initial defence of the applicant/accused was not that the cheque was stolen or not signed by the applicant, observed that the application moved by the applicant raising this defence at the fag end of the trial is with an intention to prolong the trial. The learned Magistrate further found that the cheque in question was dishonoured for want of sufficient funds in the account of the applicant. If there would have been difference in the signatures at the time of depositing the cheque itself, the bank could have assessed that reason to dishonour the cheque. The learned Magistrate, therefore, observed that the applicant is raising the ground/ defence, which is absolutely after though and without having any substance. The learned Magistrate further observed that though the applicant has cross examined the complainant and also three witnesses of the complainant, no such defence was raised at that apl.240.11 7/8 point of time. The Learned Magistrate also observed that nothing was brought on record by the applicant/accused to show that the applicant made any effort to lodge report with the police authority for missing of the blank cheque or theft of the said blank cheque from the custody of the applicant. Considering all these aspects, the learned Magistrate found no substance in the application and rejected the application. The learned Revisional Court also found no ground warranting any interference in the orders passed by the learned Magistrate and by arriving at a conclusion that the applicant/ accused is filing the application only with a view to prolong the matter, dismissed the revision with costs. On considering the orders passed by the learned Magistrate and by the Revisional Court, I am of the opinion that the orders passed by both the Courts below are just, legal and proper. No ground is coming forthwith warranting any interference at the hands of this Court under Section 482 of the Code of Criminal Procedure. It is the settled position of law that the provisions under the Negotiable Instruments Act are with an object to curb the tendency of avoiding the legal enforceable dues/debts and to maintain the sanctity of the instruments such as cheque in the commercial transaction. An identical issue was considered by this Court in the matter of Sau. Jaishree w/o. Shivprasad Bajaj vs. State of apl.240.11 8/8 Maharashtra and another, reported in 2011 ALL MR (Cri) 221. This Court, considering a similar aspect that the application was preferred by the applicant for sending the cheque to handwriting expert and for calling opinion after two years, found that preferring such an application is nothing but one of the tactics to protract the matter and maintained the order of rejection of the application by the learned Magistrate and confirmed by the Revisional Court. In view of the above mentioned facts, I am of the opinion that the application is devoid of merit and deserves to be rejected. Accordingly, the application is rejected. JUDGE *sdw