Madras High Court
P.Venkatesan vs R.Ramani on 3 November, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.RC.No.1432 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.11.2022
Coram:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Criminal Revision Case No.1432 of 2022
P.Venkatesan ... Petitioner
Vs.
R.Ramani ... Respondent
Prayer: Criminal Revision filed under Section 397 and 401 of Criminal
Procedure Code, praying to set aside the order dated 03.03.2021 passed in
Crl.M.P.No.27617 of 2019 in C.A.No.197 of 2019 by the learned XVII
Additional City Civil Court, Chennai and direct the Court to send the cheque
bearing No.001142 to get an expert opinion from the Central Forensic
Science Laboratory to find out the veracity of the numeric “1”, prefixing
45,000/- and also to find out whether the cheque which is produced in the
court is original or colour xerox of the original.
For Petitioner : Mr.R.Sreedhar
For Respondent : Mr.G.Poonkundran
****
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https://www.mhc.tn.gov.in/judis
Crl.RC.No.1432 of 2022
ORDER
This Criminal Revision Case has been filed seeking to set aside the order dated 03.03.2021 passed in Crl.M.P.No.27617 of 2019 in C.A.No.197 of 2019 by the learned XVII Additional City Civil Court, Chennai and direct the Court to send the cheque bearing No.001142 to the Central Forensic Science Laboratory to find out the veracity of the numeric “1”, prefixing 45,000/- and also to find out whether the cheque which is produced in the Court is original or colour xerox.
2. The respondent herein is the complainant and the petitioner herein is the accused. For the sake of convenience, the parties are referred to as per their rank before the trial Court.
3. The complainant had filed a private complaint against the accused under Section 200 Cr.P.C. for the offence under Section 138 of Negotiable Instruments Act in C.C.No.1342 of 2016 on the file of Metropolitan Magistrate, Fast Track Court-IV, George Town, Chennai-1. The learned Magistrate on conclusion of trial, found the accused guilty for the offence 2/12 https://www.mhc.tn.gov.in/judis Crl.RC.No.1432 of 2022 under Section 138 of Negotiable Instruments Act and convicted and sentenced to undergo 10 months simple imprisonment and to pay compensation of Rs.1,45,000/- to the defacto complainant, which is equivalent to the cheque amount, by order dated 15.04.2019.
4. Challenging the said order of conviction and sentence, the accused has filed appeal before the Principal Sessions Judge, City Civil Court, Chennai. The learned Principal Sessions Judge, taken the appeal on file in C.A.No.197 of 2019 and made over the same to the XVII Additional City Civil Court, Chennai and pending appeal, the accused filed a petition under Section 45 of Evidence Act in Crl.M.P.No.27617 of 2019 to send the subject matter of the cheque to Forensic Lab to find out the veracity of the numeric “1”, prefixing 45,000/- and also to find out whether the cheque which produced in the Court is original or colour xerox. The Additional Session Judge after hearing, dismissed the same by order dated 03.03.2021.
5. Aggrieved by the order of dismissal dated 03.03.2021, the accused has filed the present revision before this Court.
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6. The learned counsel for the accused would submit that originally the said cheque was filled with Rs.45,000/- without mentioning anything. The cheque was about to be presented in the petitioner's brother one Ponnamballam's account. But the son of the complainant stolen the subject cheque along with 5 other cheques from the custody of the petitioner's brother and deposited all the cheques in the bank. The other 5 cheques were signed by the brother of the petitioner namely Ponnammbalam for which, he filed separate complaints under Section 138 of Negotiable Instruments Act and the same were ended in conviction. Against which, criminal appeals have also been filed and the same are pending before the same Additional Sessions Judge, Chennai. He would further submit that one Alwin had handed over the subject cheque to one Ramani who is his father in law. In turn, he altered the amount from Rs.45,000/- to Rs.1,45,000/- and filled the other portion in his name and also presented the same in his bank for collection. Subsequently, the same was returned on 10.10.2014 for the reasons “account closed”. He would submit that the said cheque bearing No.001142 was already transacted by the City Union Bank, Maraimalai Nagar branch by making the payment of Rs.45,000/- from the account of 4/12 https://www.mhc.tn.gov.in/judis Crl.RC.No.1432 of 2022 KVP Stores, owned by the accused on 14.07.2012 itself. He would submit that when the case was posted for written arguments on 02.12.2019, the counsel for the accused, perused the records during which, it was found on the bare eyes that the cheque was altered as Rs.1,45,000/- instead of Rs.45,000/- which means, the numeric “1” had been inserted by the complainant. Therefore, the accused also lodged a complaint against the complainant. However, the trial Court failed to consider the said fact that the cheque produced in the Court is not original one and there is a material altercation and convicted the accused. Hence, he preferred an appeal before Sessions Judge and during pendency of the same, the accused filed the application under Section 45 of Evidence Act by seeking to send the subject matter of cheque to Forensic Lab to get expert opinion in order to bring out the truth that the cheque was materially altered by prefixing numeric “1” before the amount of 45,000/- and that the cheque produced before the Court is not original one and it is a xerox copy. But the learned Session Judge, failed to consider the reasons for filing the petition seeking expert opinion and dismissed the same. He would submit that if the cheque is not sent to the Forensic Lab for getting expert opinion, the complainant would be prejudiced and the truth will not come out. Therefore, the order of the 5/12 https://www.mhc.tn.gov.in/judis Crl.RC.No.1432 of 2022 Sessions Judge passed in Crl.M.P.No.27617 of 2019 is liable to be set aside and the subject matter of cheque has to be sent to Forensic Lab.
7. The learned counsel for the complainant would submit that the accused had borrowed a sum of Rs.1,45,000/- from the complainant as hand loan and to discharge the said liability, he had issued the cheque bearing No.001142 for the said amount dated 09.10.2014 in favour of the complainant drawn on City Union Bank, Maraimalai Nagar, Kanchipuram District. The said cheque was presented by the complainant for collection through his bank namely Indian Bank, High Court Extension Branch, Chennai on 09.10.2014 and it was returned by the banker on 10.10.2014 for the reasons “account closed”. Therefore, the complainant issued a legal notice on 06.11.2014. Though the accused received the notice, he neither repaid the amount nor sent any reply within the statutory period of 15 days. Therefore, the complainant was constrained to file a private complaint under Section 200 Cr.P.C. Accordingly, he filed a private complaint in C.C.No.1342 of 2016 on the file of Metropolitan Magistrate, Fast Track Court-IV, George Town, Chennai-1. Even during pendency of the case before the trial Court, the accused had not taken any steps to prove his defence and 6/12 https://www.mhc.tn.gov.in/judis Crl.RC.No.1432 of 2022 after loosing the case before the trial Court, in order to protract the appeal, he filed the petition under Section 45 of Evidence Act, that too after a period of 3 years from the date of receipt of the statutory notice, seeking to send the subject cheque to Forensic Lab to get expert opinion which itself clearly shows the intention of the accused. Therefore, the appellate Court rightly dismissed the petition filed by the accused and there is no merit in the revision and the revision is liable to be dismissed.
8. Heard the learned counsel for the accused and the learned counsel for the complainant and also perused the materials available on record.
9. Admittedly the petitioner is the accused and the respondent is the complainant in C.C.No.1342 of 2016 on the file of Metropolitan Magistrate, Fast Track Court-IV, George Town, Chennai-1. After the trial, the Magistrate convicted the petitioner herein on finding that the complainant/respondent herein proved his complaint and ordered compensation of Rs.1,45,000/- to the complainant. Against which, the accused has preferred an appeal before the Session Judge and pending appeal, the accused also filed a Miscellaneous petition invoking Section 45 of Evidence Act, seeking to send 7/12 https://www.mhc.tn.gov.in/judis Crl.RC.No.1432 of 2022 the disputed cheque to the Forensic Lab for getting expert opinion as to whether the disputed cheque is original one or colour xerox and whether the cheque was issued for Rs.1,45,000/- or only for Rs.45,000/- by finding whether the numeric “1” was prefixed before the amount of 45,000/- in order to enrich the cheque amount. But the said petition was dismissed by the Session Judge.
10. As rightly pointed out by the learned counsel for the complainant the statutory notice was sent to the accused by the complainant on 06.11.2014 itself and the accused also received the said notice. However, he neither repaid the amount to the complainant nor sent any reply. Therefore, the case came to be filed in C.C.No.1342 of 2016. Though the order was passed only in the year 2019, the accused had not chosen to file any such petition before the trial Court seeking expert opinion. If at all the accused had not issued the said cheque to the complainant for the said amount of Rs.1,45,000/-, the accused should have sent a reply to the statutory notice denying his liability to the said amount. Atleast, after receiving the summon from the Magistrate in the complaint in C.C.No.1342 of 2016, he should have filed a memo immediately for the inspection of the said cheque and he 8/12 https://www.mhc.tn.gov.in/judis Crl.RC.No.1432 of 2022 ought to have taken steps immediately for sending the cheque to Forensic Lab for obtaining expert opinion. But he had not chosen to do so and he waited for the outcome of trial and after the disposal of the complaint, he has filed the appeal and also the application seeking to send the disputed cheque to the forensic lab for getting expert opinion that too after a period of 3 years, which clearly shows that the attitude of the accused is not genuine. Even otherwise, his attitude is very lethargic.
11. This Court is of the opinion that the subject cheque need not be sent to Forensic Lab for the reasons mentioned in the petition. One of the reasons mentioned in the petition is that the disputed cheque is a colour xerox. For which, there is no need for expert opinion. The accused can summon his banker and ask them verify the veracity of the cheque and to confirm whether the said cheque leaf was issued by them or not.
12. The other reason mentioned in the petition is that there is a material altercation in the said cheque as the numeric “1” has been prefixed 45,000/-. The accused himself has stated that on a bare eyes, it is clearly seen that the amount 45,000/- has been altered by prefixing the numeric “1”. 9/12 https://www.mhc.tn.gov.in/judis Crl.RC.No.1432 of 2022 It is very difficult to find out as to whether the numerical “1” has been added by the accused or by the complainant since anyone can put the numeric “1” easily and it is not at all possible to find out from the stroke or by any other method as to who had put the numeric “1”. Therefore, even if the cheque is sent to Forensic Lab for expert opinion, it may not be helpful to the Court to find out the truth or to arrive to a positive conclusion as expected by the accused. The grounds taken by the accused can be decided only on appreciation of evidence. The accused can very well convince the Court without even any Forensic Expert opinion, during arguments.
13. Under these circumstances, this Court finds that the accused has not approached the Court with clean hands to get any real justice. This Court finds that in order to protract the appeal, he has filed this petition. Therefore, there is no merit in the revision and the revision is liable to be set aside.
14. It is made clear that the appellate Court, without any influence on the findings or observations made by this Court in this revision, shall dispose of the appeal on merit, after giving opportunity to both the parties and after hearing the arguments on either side, within a period of one moth from the date of receipt of a copy of this order.
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15. With the above directions, this Criminal Revision Case is dismissed.
03.11.2022 ksa-2 To
1. The XVII Additional City Civil Court, Chennai
2. The Metropolitan Magistrate, Fast Track Court-IV, George Town, Chennai-1.
11/12 https://www.mhc.tn.gov.in/judis Crl.RC.No.1432 of 2022 P.VELMURUGAN,J.
Ksa-2 Criminal Revision Case No.1432 of 2022 03.11.2022 12/12 https://www.mhc.tn.gov.in/judis