ORDER

Per U. C. Maheshwari J.

1. The applicant accused has preferred this revision under Section 397 of Cr. P. C. being aggrieved by the order dated 17.11.2011 passed by 7th Additional District Judge, Bhopal allowing the revision of the respondent and reversing the order dated 7.7.2011 passed by the Judicial Magistrate First Class, Bhopal in Criminal Case No. 18427/2008, instituted by the respondent to prosecute the applicant under Section 138 of Negotiable Instruments Act (in short “the Act”), allowing his application filed under Section 45 of Evidence Act to get examine her alleged signature on the cheque in dispute from the hand writing expert and dismissed such application.

2. The facts giving rise to this revision in short are that the applicant herein to pay the consideration had given the impugned cheque to the respondent. The respondent deposited the same with his banker for collection but was returned to him with the memo of his banker with endorsement that same has been dishonored due to insufficient fund, on which after complying the technical provisions of Section 138 and other related provisions of the Act the respondent had filed the impugned complaint against the applicant, in which the cognizance of Section 138 of the Act was taken against the applicant and after his appearance the plea was recorded, he abjured the guilt, on which the trial was passed. After recording the evidence of the respondent the impugned application of Section 45 of Evidence Act was filed on behalf of the applicant with a prayer to get examine her signature on the cheque through hand writing expert. Such application was opposed by the respondents saying that such defence being not taken at any earlier stage either in response of demand notice or in the cross-examination of respondent's witnesses, is not available to the applicant. Such prayer is also opposed on the ground that cheque was not dishonored by the banker of the applicant on such ground of difference of the signature but the same was dishonored only on the ground of insufficient fund, so the examination of signature of the applicant on the cheque from the hand writing expert is neither necessary nor could be permitted. On consideration the impugned application was allowed by the trial Court and applicant was permitted to get examine her signature of the cheque from the hand writing expert, on which the respondent had filed the criminal revision before the Sessions Court. After extending the opportunity of hearing to the parties on consideration vide impugned order dated 17.11.2011 by holding that cheque being dishonored only on the ground of insufficiency of fund and not on difference of the signature of the applicant, the examination of such cheque from hand writing expert is not necessary the revision was allowed and by setting aside the order of the trial court the impugned application of the applicant was dismissed on which the applicant has come to this court with a prayer to set aside the order of the revisional court by restoring the order of trial court.

3. The applicant's counsel after taking me through the revision memo along with the impugned order argued that although the impugned cheque was dishonored on the ground of insufficiency of fund and not on difference of the signature of the applicant but the applicant has a right to take all the available defence. In such premises the impugned application to get examine the signature from the expert was rightly allowed by the trial Court and no error of jurisdiction was committed. He further said that in any case the order of the trial court could not be interfered by the appellate Court under the revisional jurisdiction because the same was passed by the trial Court under its vested discretionary jurisdiction. In continuation, he said that if she is not permitted to examine the cheque from expert then she would be deprived to defend the matter on material and important defence regarding difference of the signature on the cheque and prayed to set aside the impugned order of the revisional Court by restoring the order of the trial court by admitting and allowing this revision.

4. Responding the aforesaid arguments by justifying the impugned order of the revisional court Shri Shobhit Aditya, learned counsel for the respondent said that the same being passed on proper appreciation of the available factual matrix and existing legal position is in inconformity with law, it does not require any interference at this stage. In continuation he said that on taking into consideration the provision of presumption enumerated under Section 118, 119 and 120 of the Act the aforesaid defence is not available to the applicant. He also said that the impugned cheque was dishonored by the banker of the applicant on the ground of insufficiency of fund then other ground raised by the applicant regarding difference of signature on the cheque is not required any consideration, as the impugned cheque was neither dishonored on such ground nor the case of the respondent is based on such ground therefore, such defence is not available to the applicant and in such premises, the applicant could not be permitted to to get examine the signature of the applicant on the cheque from hand writing expert. In support of such contention he also place his reliance on the decision of the Apex Court in the matter of L.C Goyal v. Mrs. Suresh Joshi reported in AIR 1999 S. C. 2222, so also on the case law of Karnataka High Court in the matter of H.M Satish v. B.N Ashok* reported in 2007 Cri. L. J. 2312 and the case law of Andhra Pradesh High Court in the matter of Manda Syhamsundra v. Kurella Anjaneyachari reported in Vol-IV (2008) BC 673 and prayed for dismissal of this revision.

5. Having heard the counsel at length, keeping in view their arguments in order to decide the controversy, I have carefully gone through the revision memo as well as the impugned order of the revisional Court. On perusing such order, I have gathered the information that the impugned cheque given by the applicant to the respondent to pay the due consideration was dishonored by the banker of the applicant on the ground of insufficiency of fund and not on any other ground. I have not found any reply of the applicant, given by him to the respondent, in response of his demand notice given to her before filing the complaint, to show that such defence regarding difference of signature on the cheque was taken by her at the initial stage. Even in the cross-examination of the respondent's witnesses before the trial Court no such specific defence was put forth on behalf of the applicant. The impugned complaint was filed by the respondent only on the ground of dishonoring the cheque on account of insufficiency of fund and not on the ground of difference of signature of the applicant. As such the grounds which are not the subject matter of the case could not be permitted to raise in the defence. In the case at hand when the banker of the applicant itself has not dishonored the cheque on the ground of difference of the signature then the applicant/accused could not take such defence. The applicant has only right to defend the case on the ground of insufficiency of fund and rebut the evidence of the respondent adduced on such count. In such premises the applicant could not be permitted to get examine her signature on the cheque from hand writing expert. So, in such premises the trial court had committed grave error in allowing the impugned application of the applicant but on consideration the revisional Court has rightly rectified such error by setting aside the order of the trial Court and dismissing such application by allowing the revision of the respondent. My aforesaid approach is fully fortified by the decision of the Apex Court in the matter of L.C Goyal (Supra), in which it was held as under:

(2) Dishonoring of the cheque issued by the appellant Ex.C/4 by the bank on account of insufficient fund in the account of the appellant.

The complainant alleged that when the appellant realized that the complainant has come to know that he has misappropriated a sum of Rs. 25,491/-, he gave a cheque for a sum of Rs. 38,000/- which is Ext.C-4. The said cheque was drawn on UCO Bank and the same was deposited in the Central Bank of India in the account of Union, viz., Siemens Employees Union, New Delhi. But the said cheque was dishonored due to insufficient funds. The appellant denied his signature on Ext. C-4 and contended that his signature was forged by the complainant. It is in this context that it was urged before the Bar Council of India that some handwriting expert be examined in order to find out the genuineness of the signature on Ext. C-4. As stated above, the cheque bounced not on account of the fact that the signature on 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 signature of the appellant on Ext. C-4 was not objected to by the bank, but the same was returned with the remark insufficient fund. This circumstance shows that the signature on Ext. C-4 was that of the appellant.

(3)……………

4) No reply to the notices (Exts.C-12 and C-13) dated 9.6.93 and 11.1.93, respectively.

The complainant sent two notices on behalf of M/s. Siemens Union to the appellant wherein she inter alia alleged, that a sum of Rs. 25,102/- was misappropriated by the appellant under the pretext of payment of the court fee for the suit filed by the plaintiffs, that the appellant did not press the application for injunction, and that the appellant misled the complainant as regards the progress of the case. These notices were not replied to by the appellant which is a material circumstance against the appellant when, receipt of the notices sent to him have been admitted.

5) No FIR lodged with regard to theft of the cheque book.

The case set up by the appellant before the Bar Council was that, in fact, the complainant somehow managed to get his cheque book and she after forging his signature on one of the leaf presented the same to the bank for payment. If it was true, why did the appellant not lodge any FIR with the Tilak Marg Police Station regarding theft of the cheque book. However, it was subsequently explained by the appellant that he did send a letter to the SHO of the said Police Station. But, in normal course, FIR is not lodged by letter at the first instance. Moreover, SHO, Tilak Marg Police Station gave a certificate Ext. C-14, to the effect that he did not receive any registered letter or report from the appellant regarding theft of his cheque book.

“5. These established circumstances stated above, clearly show that the signature on Exts. C-1, C-2 and C-4 were that of the appellant himself. Moreover, during the course of hearing of the case, we ourselves examined and compared the admitted signature of the appellant with that of Ext. C-4 leaving nothing to chance lest any injustice is caused to the appellant. On comparison, we found striking similarity between the admitted signature and that of the disputed one and there is no reason to doubt the genuineness of the signature on Ext. C-4. The circumstances established in the present case speak for themselves and candidly point out towards the misconduct committed by the appellant. When the established circumstantial evidence is so patent that it leads to only one conclusion that the signature on Ext. C-4 was not forged; there was no need for an opinion of a hand writing expert. We are, therefore, satisfied that the established circumstantial evidence as well as the documentary evidence in the present case show that the allegations of the complainant were well substantiated and in such circumstances of the case, the Bar Council of India was justified in declining to summon a hand-writing expert for finding out the genuineness of the signature on Ext. C4.”

6. Subsequently such case law was followed by the Karnataka High Court in the matter of H.M Satish (Supra), in which it was held as under:

7. 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 Has observed in para 8 of its judgment as under that

…the cheque bounced not on account of the fact that the appellant of Ext.C-4 was not talking 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 appellant's 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.

8. 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.

9. In the result, the Revision Petition is allowed and the impugned older 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.

7. Aforesaid decision of the Apex Court was further followed by the Andhra Pradesh High Court in the matter of Manda Syamsundra (Supra), and the application of the accused concerned filed under Section 45 of the Evidence Act was dismissed by following verdicts:

“5. In the light of the above decision and in the light of the return of the cheque not on the ground of signature not tallying, no purpose will be served in sending the documents to the handwriting expert and there are no grounds to interfere with the order of the Lower Court.”

8. In the light of aforesaid legal position, in the available factual matrix of the impugned case, as discussed above, I have not found any illegality, irregularity or anything against propriety of law in the impugned order of the revisional Court setting a side the order of the trial court and dismissing the application of the applicant filed under Section 45 of the Evidence Act.

9. In view of the aforesaid discussion, I have not found any merits in this revision, consequently, by affirming the impugned order of the revisional Court, the same is hereby dismissed. However, the trial court is directed to proceed with the trial in accordance with law and take an endeavor to conclude the same as early as possible probably within three months from the date of receiving the copy of this order under intimation to this court.

10. Revision is dismissed as indicated above.