Jaswinder Singh v. Rakesh Kumar Jain

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH **** CRM-M-27436-2023 (O&M) Date of Decision: 13.07.2023 Jaswinder Singh . . . . Petitioner Vs.

Rakesh Kumar Jain . . . . Respondent **** CORAM: HON'BLE MR JUSTICE DEEPAK GUPTA **** Present: - Mr. Ramesh Chander Sharma, Advocate, for the petitioner. **** DEEPAK GUPTA, J.

CRM-27705-2023 This application is filed for placing on record document Ex.D7 sought to be proved by handwriting expert/FSL as Annexure P-5. Application is allowed as prayed for.

Document Annexure P-5 is taken on record.

This petition under Section 482 Cr.P.C. has been filed for setting aside the order dated 23.01.2023 (Annexure P3) passed by learned JMIC, Panchkula, whereby application dated 13.09.2022 (Annexure P1) moved by the petitioner/accused in a criminal complaint number NACT/468/2018 titled as 'Rakesh Kumar Jain Vs. Jaswinder Singh' under Section 138 of the Negotiable Instruments Act, 1881 [for short 'the Act'] was dismissed. Under challenge is also the order dated 24.03.2023 (Annexure P4) passed by the learned Additional Sessions Judge, Panchkula, whereby revision against the order dated 23.01.2023 (Annexure P3) was dismissed.

2.

Complaint No.NACT/468/2018 titled as Rakesh Jain Vs. Jaswinder Singh was pending before the learned JMIC, Panchkula seeking prosecution of the accused/petitioner under Section 138 of the Act regarding dishonor of two cheques for total amount of
5 lakh. During proceedings, application (Annexure P1) was moved by the petitioner to issue direction to the complainant (respondent herein) to give his sample handwriting for comparison of the same with handwriting in Ex.D7. It was contended that Ex.D7 pertains to calculation of the amount regarding interest on loan given to the petitioner and that said writing had been proved during cross-examination of CW2 Mohd. Ayub Qureshi, though denied by the complainant and therefore, comparison of the handwriting on Ex.D7 was necessary through handwriting expert.

3.

The complainant/respondent filed reply Annexure P2 raising objection that application was not maintainable in view of the language of Section 311 Cr.P.C. It was further contended that Ex.D7 had been earlier used by the petitioner in a Civil Suit No.132 of 2019 against the husband of the complainant, wherein statement on oath was made to establish that petitioner had paid the amount in that case pertaining to another property of the accused situated in Village Sanolian, Tehsil Rajpura, District Patiala, Punjab, which case was for foreclosure of the loan of
26,50,000/-. On the other hand, the present case regarding dishonor of the cheque was qua the financial liability emerging out of agreement to sell dated 28.06.2016 qua the property of the accused situated in Village Barwala (Haryana). 4.

After hearing both the sides, learned JMIC, Panchkula by way of a speaking order dated 23.01.2023 (Annexure P3) dismissed the application. Revision against the said order has been dismissed by the

learned Additional Sessions Judge, Panchkula vide Annexure P4 as noted earlier.

5.

It is contended by learned counsel for the petitioner that impugned orders have been passed by the Courts below on account of the wrong averments that petitioner had been declared proclaimed offender in more than 10 cases. It is submitted that Ex.D7 is necessary to be proved in order to establish the defence of the petitioner and that relevant provisions of law have been ignored by the Courts below. 6.

After hearing learned counsel for the petitioner, I find no merit in the present petition.

7.

Section 311A Cr.P.C. empowers a Magistrate to order a person to give specimen signatures or handwriting. However, the main provision of Section 311A of the Cr.P.C. is controlled by its proviso. Complete provision reads as under: -
 

       

 

       

    









   












 


 









 





  


 
 










 











 



  







  

 

  



 

   

      

 

         



8.

A bare perusal of proviso to Section 311A Cr.P.C. would reveal that the order to give specimen signature or handwriting cannot be

made unless the concerned person has at some time been arrested in connection with investigation or proceeding of the case. The said provision was considered by this Court in CRM-M-10369-2022 titled as Sandeep Kumar and others Vs. UT Chandigarh decided on 10.03.2022, wherein it was held as under: -





 











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$, 9.

In view of the above said enunciation of the legal position, it is clear that in the present case, application of the petitioner seeking direction to the respondent/complainant to give his specimen handwriting / signature was not at all maintainable.

10.

As such, finding no merit in this petition, the same is hereby dismissed.

(DEEPAK GUPTA) JUDGE 13.07.2023