TaxTMI 
TaxTMI 
2006 (3) TMI 803
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....in is the accused in C.C. No.412/OA/04/B in which he is being prosecuted by the respondent/Complainant under Section 138 of the Negotiable Instruments Act, 1881(Act, for short) for bouncing of two cheques in the sum of Rs.3,35,000/and Rs.60,000/dated 4122003 and 472004 respectively. The applicant/accused did not deny that he had signed the said two cheques but it was his contention that the body of the cheque or the remaining particulars were not written by him. Likewise, it was his contention that he had not signed the A.D. card of the statutory notice sent to him by the Complainant. 3. After the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973(Code, for short), the accused filed an applica....
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....nst the said Order of the learned J.M.F.C. to the Court of Sessions but the learned Additional Sessions Judge by her Order dated 1492005 proceeded to dismiss the same. In dismissing the revision application the learned Additional Sessions Judge observed that a perusal of the crossexamination of the Complainant had revealed that it was suggested to him that the said cheques were issued without date and amount and the said date and amount were filled in by the Complainant without the knowledge or acknowledgement of the accused. The learned Additional Sessions Judge relying on the same Judgments as relied upon by the trial Court, came to the conclusion that sending the said cheques and the A.D. card would be a futile exercise and, therefore, n....
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.... Courts, it is stated that the authority of the Courts to issue summons for the appearance of the Government Expert in handwriting should be exercised with due discretion and he should not be called upon to appear in cases which are of a comparatively unimportant nature, or in which his evidence is likely to be of doubtful utility. No summons to give evidence should be issued to the above Expert by any Civil Judge or without the concurrence of the Sessions Judge. Para 28 provides that the previous sanction of Government should be obtained in all cases in which it is proposed to utilise the services of the Government Examiner of Questioned Documents, except when the reference is made at the request and the expense of a party to Civil or Crim....
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....e who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice, and, also to another observation which states that it could not be ruled out that a cunning accused person may just scribble his signature on the A.D. card that such a notice was not received by the accused. Mr. Sonak has also submitted that the discretion under Section 254(2) is certainly narrower than the discretion conferred on a Court under Section 243(2) of the Code and which discretion being in a warrant case is wider than in a summons case. 9. Section 254 of the Code deals with the procedure when an accused is not convicted in a case triable as a summons case and SubSection (2) thereof provides that the Magistrate may,....
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.... of the notice by the accused was concerned both the Courts below have placed reliance on the case of K. Bhaskaran v. Sankaran Vaidhyan Balan and another (supra) which lays down the principle that when the notice is addressed to the correct address of the drawer of the cheque/accused and is sent by registered post the same is deemed to have been received by the addressee. As far as this case is concerned one does not know why the applicant/accused has chosen not to displace the presumption available to the Complainant by virtue of Section 27 of the General Clauses Act by examining the postman. But the accused has shown his inclination to examine a handwriting expert. 12. There is no doubt that Section 254(2) of the Code is meant to give ....
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....now also as to how long the entire process of sending the said documents and obtaining the opinion would take. Likewise, one also does not know whether at a given time how quickly the handwriting expert would be available to be examined in the case after he gives an opinion. It is common knowledge that the Government handwriting experts remain busy with the Government work entrusted to them and many a times take months if not years to come and depose in support of the opinion they have given. In this context, it will be interesting to take note of the objects and reasons which compelled Parliament to pass the Amendment Act 55/2002. It was noted by Parliament that the existing provisions in the Act have been found to be deficient in dealing ....