- 1 - NC: 2025:KHC:10184 WP No. 38879 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 38879 OF 2019 (GM-CPC) BETWEEN: PUCHIMADA M SOMAIAH S/O LATE MADAIAH NALLUR VILLAGE KIRGOOR POST VIRAJPET 571216 …PETITIONER (BY SRI. SHOBHITH N SHETTY.,ADVOCATE) AND: SHRI P K BIDDAPPA S/O LATE KARIAPPA NO.184, III THYAGARAJA ROAD PONNAMPET NAD VIRAJPET TALUK KODAGU DISTRICT-571216 …RESPONDENT (BY SRI. I.S. DEVAIAH.,ADVOCATE FOR SRI. KIRAN V. RON., ADVOCATE FOR RESPONDENTS ) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED COMMON ORDER DATED.28.06.2019 PASSED IN I.A.NOs.17 TO 19 PASSED IN O.S.NO.108/2012 ON THE FILE OF THE HON'BLE SENIOR CIVIL JUDGE & JMFC, VIRAJPET, WHICH IS PRODUCED AT ANNX-'A' AND ETC. Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:10184 WP No. 38879 of 2019 THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL ORAL ORDER Petitioner, the defendant in O.S.No.108/2012, on the file of Senior Civil Judge, Virajpet is before this Court being aggrieved by the Order of rejection of his applications in I.A.Nos.XVII, XVIII and XIX filed under Section 151 of CPC, Order 16 Rule 1 and Order VIII Rule 1-A(3) of CPC respectively seeking to reopen the case to lead further evidence in the matter. 2. The above suit in O.S.No.108/2012 is filed by the plaintiff/respondent against the petitioner herein seeking recovery of a sum of Rs.23,00,000/- along with interest, which was purportedly lent by the plaintiff/respondent to the petitioner/defendant as against which it is alleged that the petitioner herein had issued a post dated cheque dated 27.04.2011 for said sum of Rs.23,00,000/-. Specific defence of the petitioner herein is that the petitioner had financial transaction with the wife of the plaintiff/respondent for the purpose of opening of a pre-school by name ''Launch Pad'' and - 3 - NC: 2025:KHC:10184 WP No. 38879 of 2019 in the said transaction the petitioner herein had issued a blank cheque and that the respondent herein has misused the said cheque by filling his name and the amount therein. 3. It appears the petitioner herein had earlier filed an application seeking reference of the said cheque for signature verification by the handwriting expert, which came to be rejected. In the meantime, the respondent herein had initiated criminal proceedings under section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as 'the Act, 1881') in a Private Complaint No.52/2011 on the file of Civil Judge (Jr. Division), Ponnampet seeking action against the petitioner herein for return of the said cheque. It appears that in the proceedings the petitioner herein had filed an application seeking expert opinion, which was allowed. Thereafter the petitioner herein has filed the present application in O.S.No.108/2012 seeking to re-open the case and to produce the said expert opinion, which was obtained in the said proceedings under Section 138 of the Act, 1881 which applications have been rejected by the impugned order. - 4 - NC: 2025:KHC:10184 WP No. 38879 of 2019 4. Learned counsel for the petitioner reiterating the grounds urged in the memorandum of petition submits that the Trial Court has grossly erred in rejecting the applications merely because on earlier occasion the request made by the petitioner herein had been declined and that since the signature on the impugned cheque has been admitted, the same would be in the compliance of Section 20 of the Act, 1881. He further submits that proceedings under Section 138 of the Act, 1881 are summary in nature, where despite the opinion of expert had been come in favour of petitioner herein, he could not lead elaborate and exhaustive evidence with regard to circumstances of issuance of said cheque in question, which can only be done in the Civil proceedings in the light of the opinion of the expert, which has been received in the said proceeding under Section 138 of the Act, 1881. 5. He further submits that the reason assigned by the Trial Court to reject the application having been filed at the stage of argument is also untenable in the light of the judgment of the Hon'ble Apex Court in the case of K.K.VELUSAMY VS. V.N.PALANISWAMY reported in (2011) 11 SCC 275. Hence, seeks for allowing of the petition. - 5 - NC: 2025:KHC:10184 WP No. 38879 of 2019 6. Per contra, learned counsel for the respondent/plaintiff at the outset submits that the proceedings under Section 138 of the Act, 1881 that was initiated against the petitioner herein has resulted in his conviction, an appeal filed against that has also resulted in rejection and revision petition in that matter is pending consideration before this Court. Therefore he submits no purpose would be served even if an opportunity is granted to the petitioner herein to produce the said document in the civil proceedings. He further submits there is no specific pleading in the written statement by the petitioner herein with regard to material alteration in the subject cheque and since admittedly a blank cheque was issued by the petitioner, filling up details in the same cannot be the ground to seek for production of the expert opinion on the said document. He submits as taken note of by the Trial Court on the earlier occasion, application filed by the petitioner herein seeking expert opinion having been declined, the present application to lead the same evidence would not serve any purpose. Hence seeks for rejection of the said application. 7. Heard and perused the records. - 6 - NC: 2025:KHC:10184 WP No. 38879 of 2019 8. The Trial Court in the impugned order while noting down the position of law requiring providing an opportunity to the parities to do substantial justice, has proceeded to note the dates of leading evidence by the plaintiff and defendant. At paragraph No.9 and thereafter at paragraph No.10, the Trial Court had taken note of earlier attempt made by the petitioner herein seeking appointment of handwriting expert to examine the subject cheque which is marked as Ex.P1. It has also taken note of reasons assigned while rejecting the said applications namely admission by the plaintiff regarding his signature. Thereafter, at paragraph No.11 the Trial Court has proceeded to hold that since the petitioner herein has admitted the signature, the dispute would fall within Section 20 of the Act, 1881. Thus, on these reasoning the Trial Court has found that there is no need for the petitioner to prove his case by leading any independent evidence by producing the documents as sought for in the instant case in the above application. The Trial Court at paragraph No.12 has also taken note of the fact that the defendant had earlier filed an application for reopening the matter at the stage of arguments to lead further evidence, which was allowed giving him an opportunity and as such, since - 7 - NC: 2025:KHC:10184 WP No. 38879 of 2019 the sufficient opportunity has been granted, there is no requirement of giving further opportunity to the petitioner herein. Thus came to the conclusion to reject the subject application by the impugned order. 9. At the outset, it is necessary to note that in paragraph No.15 of the written statement, a specific averment have been made by the plaintiff which reads as under: ''15. The defendant respectfully submits that the plaintiff and defendant being relatives are known to each other. Accordingly the wife of the plaintiff Smt. Sunitha Biddappa was also in close terms with the defendant. Smt. Sunitha Biddappa is a bold lady and carries on money lending business. That in the year 2004 the defendant intended to open a Pre-School by name "LAUNCH PAD" and since it required a huge amount of rupees ten lakhs, the defendant had some money transaction with Smt. Sunitha Biddappa and at that time she took a signed blank cheque from the defendant as a security. That the defendant had closed all money transaction with Smt. Sunitha Biddappa during 2006 itself but Smt. Sunitha Biddappa, never returned the said blank cheque in spite of this defendant demanding her to give back the said blank signed cheque. The plaintiff has miss-used the said blank cheque issued to his wife in the year 2004 by putting the amount, date, and name of the payee as per the wishes of the plaintiff.'' 10. On hearing the counsel for the parties and on perusing the records what emanates is that the petitioner seeking production of documents in the nature of expert opinion which - 8 - NC: 2025:KHC:10184 WP No. 38879 of 2019 was obtained pursuant to the order passed in the proceedings under Section 138 of the Act, 1881 in furtherance to the averments made at paragraph No.15 of written statement as noted above. Wherein it appears that the expert has given opinion regarding material alteration of the subject cheque. The documents sought to be produced are Certified Copies of opinion of the handwriting expert and the Certified Copies of the photographs of Ex.P1. The said documents have admittedly not been made available for consideration of issue at hand before the Trial Court. As already noted, earlier request made by the petitioner for referring the matter for handwriting expert has been rejected. Equally pertinent to accept the submission of the learned counsel for the petitioner herein that the proceedings under Section 138 of the Act, 1881 being summary in nature, cannot be excepted or equated with the proceedings under Code of Civil Procedure in the suit at hand. These aspect of the matter has not been adverted to in the impugned order by the Trial Court, which has proceeded to dismiss the applications merely because the petitioner herein had been earlier declined of his request for handwriting expert's opinion and that he was given opportunity of leading evidence. - 9 - NC: 2025:KHC:10184 WP No. 38879 of 2019 Though, such an opportunity was given there is nothing on record to show that the petitioner had produce evidence, which is now sought to be produced. 11. Since the original suit is still being at the stage of arguments, would not cause any prejudice to the parties, if the petitioner is given another opportunity of producing the documents sought for, as held by the case of K.K.VELUSAMY (Supra). 12. Since there is category pleading at paragraph No.15 of the written statement and in the light of the law referred to above, this Court is of the considered view under the facts situation of the matter, petitioner deserves an opportunity to lead evidence by producing three documents as sought to be produced. 13. Accordingly, following: ORDER (i). Petition is allowed. - 10 - NC: 2025:KHC:10184 WP No. 38879 of 2019 (ii). Impugned order dated 06.08.2019 passed on I.A.No.29 is set aside and the said application is allowed. (iii). Petitioner is permitted to lead further evidence on the date to be fixed by the Trial Court without seeking any further adjournment. It is made clear, if the petitioner fails to lead his evidence on the date to be fixed by the Trial Court, he shall not have any further opportunity to lead evidence (iv). The Trial Court shall permit the plaintiff to cross-examine the witness and to lead rebuttal evidence, if any. (v). The order passed as above in this writ petition and the reasons assigned shall not be construed as expression of any opinion by this Court on the merits of the case and the Trial Court shall independently assess the evidence and proceed orders in accordance with law. Sd/- (M.G.S. KAMAL) JUDGE RL List No.: 1 Sl No.: 12