Dr. K. Bhakthavatsala, J.:—
The revision petitioner/complainant is before this Court challenging the order dated 21.7.2006 made in CC No. 937/2005 on the file of JMFC at Mudigere.
2. The Learned Counsel appearing for the revision petitioner/complainant submitted that no evidence was adduced by the accused but he filed an application under Sec. 45 of the Evidence Act (in short, ‘the Act’) to refer the cheque in question viz. Ex. P-1 to hand writing expert for opinion whether the signature on the cheque is that of the accused or not. The complainant objected the application. But the Learned Magistrate allowed the application to refer the cheque in question to a hand writing expert.
3. The Learned Counsel appearing for the respondent/accused submitted that the cheque in question is one of the two cheques he lost and his signature is forged and there is no illegality or infirmity in the impugned order.
4. The case of the complainant is that the respondent/accused approached the complainant and borrowed a sum of Rs. 5,00,000/- in the month of December 2004 and issued a cheque bearing No. 87784 dated 13.7.2005 drawn on Chickmagalur District Co-operative Central Bank, Banakal Branch. But, when the complainant presented the cheque, it was dishonoured and returned with an endorsement stating “funds in-sufficient”. Thereafter, the complainant issued a legal notice calling upon the accused to pay the cheque amount. But the accused replied stating that he had lost two cheque leaves and the complainant has mis-used the same.
5. In support of the case of the complainant he has got him examined as PW-1 and got marked Ex. P. 1 to 5. Statement of the accused was recorded under Section 313 of Cr. P.C Thereafter, the accused filed the application under Section 45 of the Act for referring the cheque in question for opinion of a hand writing expert. The accused has answered the question No. 5 of statement recorded under Section 313 of Cr. P.C stating that he and the complainant were partners in timber business and on account of rift between them, the accused has made use of blank cheque, and he has no defence evidence.
6. In the case of denial of signature of drawer of a cheque, the best witness would be the concerned Bank Manager and not a hand writing expert. The Learned Magistrate has allowed the application solely on the ground that the accused would be put to greater hardship if the application were rejected. The Learned Magistrate has not appreciated the facts on record while allowing the application. It is useful to refer to the decision of the Hon'ble Apex court rendered in L.C Goyal v. Mrs. Suresh Joshi . 1999 3 SCC 376. has observed in para 8 of its judgement as under that.
“……the cheque bounced not on account of the fact that the appellant of 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 appellants specimen signature kept with the bank. The memos Ext. C-6 and Ext. C-8 issued by the bank clearly show that the signature of the appellant on Ext. C-4 was not objected to by the bank, but the same was returned with the remark “insufficient funds”. This circumstances shows that the signature of Ext. C-4 was that of the appellant”.
7. The above said decision is applicable on all the fours to the case on hand and the impugned order is not sustainable in law and the same calls for interference by this court.
8. In the result, the Revision Petition is allowed and the impugned order dated 21.7.2006 made in CC No. 937/2005 on the file of JMFC at Mudigere, is set aside, and the application filed by the accused under Section 45 of the Indian Evidence Act is dismissed. The Learned Magistrate is directed to dispose of the criminal case, in accordance with law, within 3 months from the date of receipt of this order.