Jasbir Singh vs Data Ram

Dev Darshan Sud, J.—Actual date notice was issued to the respondent, but nobody appears on his behalf.

The petitioner challenges the order passed by the learned Trial Court on 10.11.2009, dismissing two applications instituted by the petitioner herein, namely, one u/s 45 of the Evidence Act and another u/s 311 of the Code of Criminal Procedure.

In the first application, the petitioner herein raises a serious dispute i.e that the cheque Ext. C.3 in the sum of Rs. 30,000/- which is purported to have been issued by him, is forged. In these circumstances, the petitioner seeks assistance of the Court for having the cheque sent to the handwriting expert to ascertain whether the name and amount of money filled in words and figures are in his handwriting. He seeks to have these compared with his admitted signatures and handwritings in Ext. R.W. 1/E.

The learned Trial Court has rejected this application primarily on the basis that the evidence of the petitioner is complete and the case has been fixed for final arguments. The second ground for rejecting the application is that expert opinion about the hand writing is not clinching evidence. 5. In the second application u/s 311 of the Code of Criminal Procedure, the petitioner seeks permission to examine the concerned Clerk from the Ananta Cement Factory at Patti Natha Singh, Paonta Sahib, Distt. Sirmour, H.P alongwith record to establish that at the relevant time, petitioner was gainfully employed there and was not conducting his private business, which would go to the root of the case.

The learned Trial Court rejected this application also by holding that since the application u/s 45 of the Evidence Act has been rejected, no permission can be granted.

True, that allowing an application u/s 311 Cr.P.C is discretion of the Court. Similarly, an application moved u/s 45 of the Evidence Act is also to be considered within the parameters laid down by law as interpreted in various judicial precedents and it is not the unfettered right of an applicant. Yet, I do not find anything in the order which shows that the learned trial Court had in fact followed those parameters or applied its mind to the precedent/principle of law applicable. What required adjudication was whether the evidence, if allowed, would go to the root of the case in exonerating the complainant or conversely convicting him. That was the crux of the matter, which has been ignored by the learned trial Court.

In these circumstances, the order under challenge is quashed and set aside. The case is sent back to the learned trial Magistrate, where the petitioner shall appear on 2nd of August, 2010. The Court shall proceed afresh in accordance with law. Both the applications filed by the petitioner are allowed. Least to say here, the applicant will also be given an opportunity to lead evidence in opposition to the evidence allowed to the petitioner.

Let record of the Court below be sent back immediately.