Page No.# 1/6 GAHC010238042024 2025:GAU-AS:329 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./450/2024 BRIJ SHARMA DHITAL S/O SRI BHUBAN CHANDRA DHITAL SHARMA R/O HASTINAPUR P.O. AMERING P.S. BASISTHA DIST. KAMRUP (M), ASSAM PIN- 781023 VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PP, ASSAM 2:SRI KIRAN THAPA S/O JANG BD. THAPA R/O DEVKOTA NAGAR MALIGAON P.S. JALUKBARI DIST. KAMRUP (M) ASSAM PIN NO.781014 Advocate for the Petitioner : MR S SARMAH, Advocate for the Respondent : PP, ASSAM, MR. N D SARMA (R-2),MR. Z ALAM (R-2) Page No.# 2/6 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER 09.01.2025 Heard Mr. S. Sarmah, learned counsel for the petitioner. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State respondent No.1 and Mr. Z. Alam, learned counsel for the respondent No.2. 2. This application has been filed under Section 438/442, read with Section 538 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the impugned Order dated 09.09.2024, passed by the learned Judicial Magistrate First Class No. 4, Kamrup (M), in C.R. (N.I. Act) Case No. 1237/2019. The order rejected petition No. 4064/2024, filed by the accused/petitioner, which sought to have the cheque in question sent for examination to the Forensic Science Laboratory (FSL) in Kahilipara, Guwahati, Assam, for analysis by a handwriting expert. 3. Mr. Sarmah, learned counsel for the petitioner, has submitted that respondent No. 2 lodged the complaint case under the Negotiable Instruments (N.I.) Act, stating that the petitioner issued a cheque (No. 204972) towards a legally enforceable debt. However, the cheque was dishonoured due to insufficient funds in the petitioner’s account. After fulfilling the required formalities, the complaint was lodged against the petitioner. During the trial, respondent No. 2 adduced P.Ws., and the petitioner’s statement was also recorded under Section 313 of the Cr.P.C. The case was then fixed for defence evidence. While the case was pending for defence evidence, the petitioner filed an application under Section 45 of the Indian Evidence Act, praying that the cheque in question be sent to the Director of the Forensic Science Laboratory Page No.# 3/6 (FSL), Kahilipara, Guwahati, for examination by a handwriting expert. However, this prayer was rejected by the learned Trial Court in its order dated 09.09.2024. 4. Mr. Sarmah, learned counsel for the petitioner further submitted that though the petitioner admits the signature on the cheque to be his, he claims that he issued the signed, blank cheque to respondent No. 2 as a security cheque. The petitioner contends that the contents of the cheque were not filled up by him. Therefore, he filed the petition to have the cheque sent to the FSL for examination. He further submitted that the petitioner admittedly took a loan from respondent No. 2 and, to that effect, issued two blank cheques or security cheques. However, the petitioner has repaid the entire loan amount, with interest. Despite this, the case was filed by respondent No. 2 based solely on the possession of the signed cheques, which the petitioner issued as security. He also submits that the learned Trial Court rejected the petitioner’s prayer without considering the full facts and circumstances, stating that the application was filed only to delay the proceedings. 5. He further submitted that Section 20 of the N.I. Act does not grant an absolute right to the holder of the cheque. Rather, it provides prima facie authority to complete an incomplete negotiable instrument, subject to the conditions and riders outlined in the Act. In this regard, he referred to the decision of the Co-Ordinate Bench of this Court in the case of Dip Bora vs. State of Assam & Ors., reported in 2018 (1) GLT 127, specifically emphasizing paragraphs 15 and 16 of the judgment, which read as follows: “15. Section 20 of the NI Act does not provide any absolute right to the holder of the cheque. It only grants a prima facie authority interalia to complete an incomplete negotiable instrument subject to the condition and rider provided therein. No doubt, Section 118 of the N.I. Act case, as referred by the learned counsel for the respondent, raises presumption in Page No.# 4/6 favour of the holder of the cheque, but such presumption is always subject to rebuttal. When a serious allegation of manipulation or forgery of the cheque is raised, the accused cannot be denied the opportunity of rebutting such presumption by adducing evidence of his choice. 16. So far para-9 of the judgment in Nagappa Vs. Murulidhar (supra) relied by the learned counsel for the respondent is concerned, there is no controversy with regard to the ratio laid down therein, that the accused should not be allowed to unnecessarily protract the trial by filing vexatious petition or seeking assistance of the court which would not be at all relevant. The provision of Sub-Section (2) of Section 243 itself provides that assistance sought by the accused may be refused when the court is satisfied that the application for such assistance is made only to cause delay or for vexation or to defeat the cause of justice. Whether the petition filed by the parties is vexatious or with the motive of causing delay has to be considered on the facts and circumstances of each case. In the instant case, as noticed hereinabove, the petition was filed by the accused at the appropriate stage and the reason for sending the cheque for examination by expert also cannot be held to be flimsy one. Therefore, the prayer of the petitioner in the facts and circumstances, cannot be said to be vexatious or with the motive of causing delay.” 6. On the other hand, Mr. Alam, learned counsel for respondent No. 2, submits that the learned Trial Court rightly passed the order rejecting the prayer for examination of the handwriting through an FSL expert. It is an admitted fact that the petitioner issued the cheque in question, and he also admits that the signature on the cheque is his own. He further submitted that, even assuming for argument's sake that the contents of the cheque were not filled up by the petitioner, the fact remains that the cheque was issued by the petitioner. Therefore, he submits, no illegality or error has been committed by the learned Trial Court that would warrant interference with the order dated 09.09.2024, which rejected the prayer for handwriting examination by an FSL expert. Page No.# 5/6 7. In this regard, Mr. Baruah, learned Additional Public Prosecutor, has submitted that the learned Trial Court passed the order correctly and that no interference from this Court is required. 8. Upon hearing the submissions of the learned counsels for both sides, I have perused the case record and the impugned order passed by the learned Trial Court. It is observed that the petitioner has already adduced three defence witnesses (D.Ws.) after the closure of the prosecution evidence (P.Ws.) and the recording of the statement under Section 313 of the Cr. P.C. It is also an admitted fact that the signature on the cheque in question is not disputed, and the petitioner acknowledges that he issued the cheque only as a security cheque. However, to rebut the plea of respondent No. 2 and establish his defence, the petitioner has already adduced three defence witnesses, and the case is fixed for further defence evidence. From the order, it is clear that the learned Trial Court rightly observed that the contents of the cheque could have been filled in by another person, but the key issue is whether the signature of the cheque holder is disputed. The learned Trial Court has correctly observed this point in the following paragraph: “When the signature in the cheque and the cheque itself is clearly admitted by the accused to be his own, it is immaterial as to who had filled up the remaining contents of the said cheque in question. Even if the remaining contents of the cheque except the signature therein are made by somebody else or in somebody else's handwriting, what ultimately matters is the signature in said cheque. In the instant case, the accused at no point has disputed the signature in the Exhibit- 1 to be his and as such, I do not find any necessity in sending the exhibit-1 being the cheque in question to the FSL, Kahilipara, Guwahati at this stage, more so, as the instant complaint is nearing the end of the trial.” Page No.# 6/6 9. The petitioner can substantiate his plea by adducing evidence and also by rebutting the evidence of the prosecution witnesses (P.Ws.) to establish that he bears no liability for the payment of the cheque amount, etc., during the trial of this case. However, sending the cheque in question solely to examine its contents may not be necessary for the proper adjudication of the matter, as the petitioner does not dispute the signature on the cheque. 10. In light of the above, I find that no irregularity or error has been committed by the learned Trial Court in rejecting petition No. 4064/2024, filed by the accused/petitioner. Therefore, no interference is required with the impugned order dated 09.09.2024, passed by the learned Judicial Magistrate First Class No. 4, Kamrup (M), in C.R. (N.I. Act) Case No. 1237/2019. The same is hereby dismissed. 11. With above observation, this Criminal Revision Petition stands disposed of. JUDGE Comparing Assistant