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Judgment
N. Ananda, J.—Petitioner is the accused in C.C. No. 21345/2008, pending trial for an offence punishable u/s 138 of Negotiable Instruments Act, 1881 (for short, ''the Act'').
The brief facts necessary for disposal of this case are as follows:
The respondent had filed O.S No. 661/2003 against petitioner for recovery of a sum of Rs. 1,10,000/- with interest at 1.5% per annum on the basis of on demand promissory note stated to have been executed by petitioner in favour of respondent. The petitioner did not contest the suit. Therefore, suit, was decreed exparte and decree was put to execution. In the execution proceedings, warrant for attachment of moveables of petitioner was issued. When bailiff came near the house of petitioner, petitioner issued two cheques for a sum of Rs. 50,000/- each in favour of respondent. When the cheques were presented, they were not honoured as petitioner had given stop payment instructions to his banker.
The learned Counsel for petitioner would submit that on demand promissory note on the basis of which suit filed is a fabricated document. The petitioner has filed Miscellaneous Petition No. 678/2008 to set aside exparte decree. Therefore, it is necessary to send on demand promissory note dated 10.10.2001 for comparison of signatures found therein with admitted signatures of petitioner, which I am not persuaded to accept for following reasons:
The genuineness or otherwise of on demand promissory note dated 10.10.2001 was the fact in issue in original suit, which ended in an exparte decree in favour of respondent. If petitioner succeeds in Miscellaneous Petition No. 678/2008 and exparte decree is set aside, in the original suit, petitioner may dispute the genuineness of on demand promissory note dated 10.10.2001. However, genuineness or otherwise of on demand promissory note cannot be the subject matter of proceedings pending in C.C. No. 21345/2008. The contention of petitioner that cheques issued by him were not supported by consideration has to be established before trial Court. Such contention of petitioner cannot be established by sending on demand promissory note to handwriting expert.
The learned Counsel for petitioner has relied on judgments of the Supreme Court, reported in 2008(5) KCCR 3030 (in the case of T. Nagappa v. Y.R. Murlidhar) and 2007(1) KCCR 689 (in the case of Kalyani Baskar v. M.S. Sampornam), wherein the Supreme Court has held in appropriate cases where the accused had denied signatures on the cheques then they may be sent for comparison of signatures on cheques with, admitted signatures of petitioners, depending upon facts and circumstances of case.
Therefore, what has been held by the Supreme Court in the aforestated judgments is not applicable to facts of this case. Accordingly, petition is dismissed. However, it is made clear observations made herein shall not be construed as expression of opinion on merits of the proceedings between parties.