Madras High Court
Muthuraj vs Ganesan on 21 December, 2012
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21/12/2012 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRL.R.C.(MD)No.472 of 2012 a n d M.P.(MD) No.1 of 2012 Muthuraj ... Petitioner Vs Ganesan ... Respondent PRAYER Criminal Revision Petition filed under Sections 397 and 401 of Cr.P.C., to call for the records and set aside the order passed by the Judicial Magistrate (Fast Track Court), Sriviliputhur in Cr.M.P.No.1728 of 2012 in S.T.C.No.32 of 2012 dated 27/9/2012. !For Petitioner ... Mr.P.Natarajan ^For Respondent ... Mr.G.Marimuthu - - - - - :ORDER
The Petitioner/Accused has preferred the instant Criminal Revision Petition as against the order dated 27/9/2012 in Cr.M.P.No.1728 of 2012 in S.T.C.No.32 of 2012 passed by the Learned Judicial Magistrate (Fast Track Court), Srivilliputhur.
2. The Learned Judicial Magistrate (Fast Track Court), Srivilliputhur, while passing the orders in Cr.M.P.No.1728 of 2012 on 27/9/2012 has among things observed that "on the side of the Respondent/Complainant, evidence has been completed and also when questioned under Section 313 of the Criminal Procedure Code and posted for the evidence of opposite side (Accused side) at that point of time, the present Miscellaneous Petition has been filed with a view to delay the proceedings and resultantly dismissed the Petition holding that it is not maintainable."
3. According to the Learned Counsel for the Petitioner/Accused, the order of the trial Court in Cr.M.P.No.1728 of 2012 dated 27/9/2012 is against law, weight of evidence and all probabilities of the case.
4. The Learned Counsel for the Petitioner/Accused urges before this Court that the trial Court has failed to appreciate the available materials on record in proper and real perspective.
5. It is the submission of the Learned Counsel for the Petitioner/Accused that the trial Court has failed to consider the statement of P.W.2 during his cross-examination that cheques bearing Nos.536501 to 536620 have been issued on 30/10/2000 and the account was closed on 28/11/2000 and the disputed cheque number is 536619.
6. Yet another plea taken on behalf of the Petitioner/Accused is that P.W.2 has deposed that two different inks have been used in the cheque, but this vital aspect has not been looked into by the trial Court. Also, it is the stand of the Petitioner/Accused that the trial Court has failed to consider that if the age of the ink is determined by scientific investigation, the truth will come out.
7. Expatiating his contentions, the Learned Counsel for the Petitioner/Accused contends that the trial Court has failed to consider an important fact that the Petitioner/Accused has given the cheque in issue before ten years to one Ponnuchamy (friend of the Petitioner). However, the said Ponnuchamy died six years ago, which fact is admitted by the Respondent/Complainant.
8. Lastly, it is the contention of the Learned Counsel for the Petitioner/Accused that the trial Court has failed to appreciate that the signature and the amount in numbers have been written in one ink which looks old and other portions of the cheque have been filled up in another ink which bears a look as if it is newly written.
9. Per contra, it is the submission of the Learned Counsel for the Respondent/Accused that the trial Court has analysed the entire gamut of the matter by taking into account the relevant facts and circumstances in an attended fashion and has consequently held that on the side of the Respondent/Complainant, evidence has been completed and also questioning has been done under Section 313 of the Criminal Procedure Code and when the matter has been posted for adducing evidence on the side of the Petitioner/Accused at that point of time, the Petitioner/Accused has filed Criminal Miscellaneous Petition mainly with a view to delay the proceedings and ultimately dismissed the petition as not maintainable which need not be interfered with by this Court at this distance point of time.
10. The Learned Counsel for the Petitioner/Accused submits that the Petitioner/Accused filed Cr.M.P.No.1728 of 2012 (under Section 293 of the Criminal Procedure Code) seeking permission of the trial Court to send the cheque for examination to be done by the Forensic Expert in order to find out whether the words "Rupees One Lakh and Twenty Five thousand only" and the figure "Rs.1,25,000/-" and also the signature found at the bottom of the cheque have been written in one ink and also whether the date "5/2/2012" and "R.Ganesan"
have been written in different ink etc.
11. The stand of the Petitioner as seen from the petition in Cr.M.P.No.1728 of 2012 is that in regard to the genuineness of the cheque produced before the Court, there are genuine and reasonable doubts have arisen and also that the Petitioner/Accused has given the cheque (filed in the case) to his friend Ponnuchamy ten years ago as security and when the amount of Ponnuchamy has been settled, the said Ponnuchamy has not returned the cheque and also the aforesaid Ponnuchamy was expired six years ago. Further, Ponnuchamy's wife's Village is Sivagiri and the Respondent/Complainant is the maternal Uncle's son of Ponnuchamy with whom the Petitioner/Accused has given the case cheque and from the said Ponnuchamy's wife, it has been obtained and through the Lawyer at Sivagiri, a notice has been issued with a bad intention by the Respondent/Complainant.
12. It comes to be known that in Cr.M.P.No.1728 of 2011, the Petitioner/Accused has also stated that the other points that arise for rumination centering around the cheque pertain to whether in the cheque, date '5/2/2012' and 'R.Ganesan' have been written by one person and the words "Rupees One Lakh Twenty Five thousand only) and the figure "Rs.1,25,000/-' have been written by another person. Also, the Petitioner/Accused has raised a query whether how many years prior to 30/7/2012, the words 'Rupees One Lakh and Twenty Five thousand only' and the figure 'Rs.1,25,000/-' and the signature seen in bottom of the cheque could have been written. Likewise, the filled up date and the word R.Ganesan when written prior to 30/7/2012 when they have been written (how many days before filing of Cr.M.P.No.1728 of 2012 dated 30/7/2012).
13. In the counter filed by the Respondent/Complainant, it is crystal clearly stated that the petitioner/Accused when he cross-examined P.W.1 at that time, he has admitted that the amount and his signature have been filled up by him and further, he admits the signature seen in Ex.P.1 Cheque. Further, it has been averred that for finding out the age of the ink with the assistance of an Expert, no progress will be made in the pending proceedings and in Law, it is not stated that the body of the cheque will have to be filled up by a person who issued the same and the body of the cheque viz., the contents of the cheque can be filled up by anyone person and therefore, the petition filed by the Petitioner/Accused is not maintainable.
14. The Learned Counsel for the Petitioner/Accused submits that adducing evidence in support of the defence is a valuable right and that the trial Court has deprived the valuable right to the Petitioner/Accused when it dismissed Cr.M.P.No.1728 of 2012.
15. To lend support of the said contention, the Learned Counsel for the Petitioner/Accused relies on the decision of the Honourable Supreme Court in KALYANI BASKAR (MRS.) Vs. M.S.SAMPOORNAM (MRS.) {(2007) 2 Supreme Court Cases - 258}, wherein it is held that "The Magistrate should have granted the request for sending the cheque to obtain the opinion of Handwriting Expert to ascertain the genuineness of signature on it, unless he considered that the object of the accused was vexation or delaying the proceedings etc."
16. He also cites the decision of the Honourable Supreme Court T.NAGAPPA Vs. Y.R.MURALIDHAR {(2008) 5 SUPREME COURT CASES - 633}, wherein at page 634, it has inter alia held that "Regardless of the presumption that can be raised under Section 118 (a) or 139 of the Negotiable Instruments Act, an opportunity of rebuttal must be granted to the accused for adducing evidence."
17. He invites the attention of this Court to the decision V.P.SANKARAN Vs. R.UTHIRAKUMAR (AIR 2009 MADRAS 166), wherein at page 167, it is held that "When contents of pronote are specifically disputed, referring same to handwriting expert is inevitable and that the Defendants has to be afforded with ample opportunities to rebut presumption under Section 118 of the Act and further, by no stretch of imagination, it could be stated that opinion of expert is not relevant factor for adjudication."
18. Also, on the side of the Petitioner/Accused, the Learned Counsel cites the order dated 23/12/2010 in Crl.R.C.(MD) No.145 of 2010 passed by this Court between A.SIVAGNANA PANDIAN Vs. M. RAVICHANDRAN, wherein in paragraph Nos.30 to 32, it has among other things observed that "30. If the expert concerned considers that such examination would destruct a part of the document or the document itself, they may report the fact before the Court and the Court thereafter shall pass further orders for the proof of the facts on the basis of pleadings and other evidence. Latching the opportunity to the accused in the attempt at the stage of rebutting the presumption under Section 118 (a) and 139 of the Negotiable Instruments Act is not at all "fair trial". As per the settled law, every opportunity shall be extended to the accused to establish his defence.
31. In this situation, it is also regarded that it is the view of the Supreme Court that some delay in taking steps for referring the document to the wisdom of the expert cannot be a legal embargo for entertaining the plea.
32. In view of the above said study and discussion, I am fortified in my view that the disputed document has to be referred to the expert for ascertaining the age of the ink and practical hardships, if any, sustained by the expert shall be brought to the notice of the Court and the Court shall thereafter act according to the settled principles and procedures, in affording appropriate opportunity to the accused to prove his defence. Hence, interference with the order challenged before this Court has become inevitable, which is set aside. The revision deserves to be allowed."
19. However, the Learned Counsel for the Respondent/Accused cites the decision R.JAGADEESAN Vs. N.AYYASAMY AND ANOTHER {2010 (1) CTC - 424}, wherein at page 428, it has among other things held as follows:-
"In my considered opinion, a careful reading of the said Judgment would also go to show that there was no occasion for the learned Judge to answer the question as to whether there is any expert available in terms of Section 45 of the Evidence Act to offer any opinion regarding the age of the document. The entire case proceeded under the premise as though there are experts to offer opinion regarding the age of the documents. Now, as I have already stated, the Head of the Department of Forensic Science is before me and from whom I have the benefit of ascertaining that there is no expert in the filed and also that all such documents sent already were returned without offering any opinion. Therefore, the said Judgment also would not come to the help of the respondents."
20. He also cites the decision of this Court in S.GOPAL Vs. D.BALACHANDRAN {2008 (1) CTC - 491}, wherein it is held that "Section 20 of the Negotiable Instruments Act applies only to stamped instrument like promissory note and bill of exchange and not to blank cheques issued after signature of the drawer but Act does not prescribe that drawer alone should fill up the cheque and the blank cheque signed by drawer and filled up by third person for negotiating the same is valid and it is open to drawer of the cheque to give authority to payee or holder in due course to fill up cheque signed by him and such instrument is valid in the eye of law."
21. At this stage, this Court deems it appropriate to point out that in the decision D.KARTHIKEYAN Vs. M.SELVARAJ {2011 (2) MWN (Cr) DCC - 67}, wherein it is held as follows:-
"Mere fact that no reply was issued to statutory notice, will not amount to admission of the case of the Complainant."
22. Also, this Court aptly points out the decision M/s.PRAVEEN METAL AGENCIES, BANGALORE AND ANOTHER Vs. M.BALASUBRANYAM AND ANOTHER (AIR 1993 KARNATAKA - 334), wherein it is held as follows:-
"Wherein the cheque indorsed in favour of the possessor merely because some part was written by somebody other than the signatory, it could not be said that the party in whose favour it was indorsed should have been put on guard against accepting it when he had no reason to suspect the genuineness of the signature. There is a presumption under Section 118 that every such instrument was made or drawn for consideration and that a holder of negotiable instrument is a holder in due course, subject to the proviso stated in clause
(g), Section 118."
23. Moreover, this Court cites the decision V.K.GEMINI Vs. CHANDRAN & ANR reported in {2007 Crl.L.J - 1285}, wherein at page 1286, it is held as under:-
"The legislature has safeguarded a honest drawer while drafting S.139 by including the expression 'holder'. The interest of the complainant is also equally protected, by laying down a provision relating to presumption under S.139 on an important factor coming under S.138. The expression 'holder' is cautiously used in S.139 so that the presumption under the said section shall be drawn in favour of the complainant, only if it is established by evidence and other materials on record that he is the 'holder' of the cheque, as defined under S.8 of the Negotiable Instruments Act. In the absence of establishing the same, no presumption shall be drawn under S.139, in favour of the complainant, who may ordinarily be the 'payee' or 'holder in due course', as the case may be. If this is not insisted, there may be chances for misuse of the provisions which will defeat the very object of the enactment.
Irrespective of whether the alleged transaction is stated in the complaint or not, if the complainant seeks to draw the presumption under S.139 he is bound to establish the basis for drawing the presumption. The fundamental basis for drawing such presumption is that the Court's satisfaction that the person in whose favour the presumption is drawn is the 'holder' of the cheque. If such fact is not established, the Court shall not draw such presumption in favour of the complainant. The complainant will not then be relieved of the burden of proving one the ingredients of the offence under S.138. But, the complainant did not establish in this case that as the holder of the cheque, he is entitled, in his own name to receive and re-entitled, in his own name to receive and recover the amount due thereon from the accused etc. Hence presumption under S.139 cannot be drawn in his favour to hold that the cheque, that it is admittedly drawn by the accused. The admission of the hand writing and signature on the cheque alone will not prove the offence under S.138 of the Act, without proving the other ingredients. One of such ingredients is the specific purpose for which the cheque is drawn viz., 'for the discharge of a debt or other liability'. This is not proved in this case. Hence, there is no ground to interfere with the other of acquittal of the accused."
24. Ordinarily, a promissory note is executed in the name of 'Payer' and left unfilled to be filled by the actual holder, the intention being to enable the owner to pass it of to another person without incurring responsibility as an Endorser. In law, an individual in possession of incomplete instrument, in material particulars, is having a valid authority to fill it up in the considered opinion of this Court. Even an inchoate stamp instrument cannot be rejected on the basis that as per Section 93 of the Indian Evidence Act, filling up of a blank is not permissible, in the considered opinion of this Court.
25. A blank cheque could be filled up by the Holder thereof, which will be a valid instrument inlaw. If a blank cheque is issued by a Drawer, after signing Section 20 of the Negotiable Instruments Act, will have no application, as opined by this Court. A cheque as per Section 138 (a) of the Negotiable Instruments Act, 1881 is to be presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. Also, in order to make an individual other than the Payee, a 'Holder in Due Course' of cheque payable to order there shall be an endorsement in his favour and delivery of cheque. It is not open to an accused in a presumption under Section 138 of the Negotiable Instruments Act to lead evidence that he had a genuine/reasonable cause for issuing the cheque of the nature described in Section 138 of the Negotiable Instruments Act. Such a defence is excluded by Section 140 of the Act.
26. The issue/question whether the 'Holder' of a cheque can present the cheque after a long lapse of time by placing reliance on Section 20 of the Negotiable Instruments Act in and by which, it is a barred one can very well be canvassed/agitated before the trial Court and appreciated by it, in view of the oral and documentary evidence to be let in/adduced by the respective parties.
27. It cannot be forgotten that as per Section 118 of the Negotiable Instruments Act, there is a presumption in law that the document is supported by consideration. The burden lies on the Accused to establish that what is found in the document is not a true and valid one.
28. As a matter of fact, the presumption under Section 138 of the Negotiable Instruments Act is a rebuttable one. The onus of establishing that the cheque has not been issued for a debt or liability is on the accused. The Drawer has to prove in the trial proceedings by adducing cogent and convincing evidence in this regard.
29. In this connection, this Court relevantly points out that the ingredients of Section 20 of the Negotiable Instruments Act, 1881 would not be attracted automatically. These are all the matters which have to be looked into by the trial Court in a proper and real perspective when parties let in evidence in this regard, before holding as to the application of Section 20 r/w. Section 118 of the Negotiable Instruments Act.
30. Apart from the above, this Court pertinently recalls the decision of the Honourable Supreme Court in Union of India V. Jyoti Prakash Mitter {AIR 1971 SC 1093}, wherein at page Nos. 1098 to 1100, in paragraph Nos.10 to 12, it is observed as follows:
"10.After consultations between the Ministry of Home Affairs and the Ministry of Law, the Home Ministry sent certain old writings of the year 1904, 1949, 1950 and 1959, and requested the Director to determine the age of the writing of the disputed horoscope and marginal note in the almanac by comparison. The Director on April 17, 1965 wrote that it "was impossible to give any definite opinion by such comparisons particularly when the comparison writings were not made with the same ink on similar paper and not stored under the same conditions as the documents under examination", and that it "will not be possible for a document expert, however reputed he might be, anywhere in the world, to give any definite opinion on the probable date of the horoscope and the ink writing in the margin of the almanac".
11.After receiving the second report from the Director, the Ministry of Law raised the question about the opportunity to be given to the respondent before the President in the enquiry for determining the age of the respondent under Art. 217 (3) . It was then decided to refer the question to the Chief Justice of India for his advice. On July 24, 1965 the Chief Justice of India advised the President about the procedure to be adopted in the determination of the age of the respondent. Thereafter pursuant to a suggestion made by the Law Minister the Ministry of Home Affairs wrote to the respondent on July 31, 1965 requiring him to state the date or year of the horoscope. The respondent by his letter dated August 4, 1965, stated that it was not possible for him to give definitely the date or year of the horoscope but he asserted that it was at least in existence in the year 1921 when it was consulted on the occasion of his marriage. On February 23, 1965 the respondent addressed a telegram to the President requesting that an early decision of the question of his age may be reached. On March 15, 1965 he addressed another telegram to the President requesting leave to produce other documentary evidence which he claimed may be available in East Pakistan, but sometime thereafter he informed the Secretary, Ministry of Home Affairs, that owing to lack of co-operation on the part of the people in East Pakistan it was not possible to get the evidence which was mentioned in his letter to the President and that he must content himself with the evidence he had already produced and which in his view was "overwhelming". He further stated :
"You can, therefore, take it that I have no evidence to produce on the subject of my age, unless I am driven to call an expert or experts as indicated by me in my letter to you, dated 3rd February, 1965".
On August 13, 1965, copies of the reports of the Director of the Forensic Science Laboratory were forwarded by the Home Secretary to the respondent with a forwarding letter by which the respondent was informed that if he had any comments to make on the opinion expressed by the Director they may be submitted and that if the respondent desired he may also adduce evidence in rebuttal in the form of expert opinion supported by proper affidavit, and that the comments, evidence and affidavits, if any, may be sent within one month of the letter. On receipt of the letter of the Home Secretary the respondent sent a telegram addressed to the Home Secretary on September 1, 1965, praying that the President may call for all papers and documents, if not already sent for and grant him an audience, "If at all necessary". The respondent also wrote a letter on that day submitting that the evidence tendered by him was "conclusive" and there was no question of adducing any further evidence or any evidence in rebuttal. He also submitted that the entry in the Bihar and Orissa Gazette (declaring him successful at the matriculation examination) was erroneous and concluded the letter that all relevant documents be placed before the President, and that the President "may be graciously pleased to grant "him" an audience for the purpose of deciding the question of his age".
12.The file of the respondent's case was then submitted to the President. On September' 16, 1965 the President referred the matter to the, Chief Justice of India asking him for his advice. On September 28, 1965 the Chief Justice recommended that the age of the respondent be decided on the basis that the respondent was born on December 27, 1901. The Chief Justice set out in detail all the evidence including the reports of Dr. Iyengar, Director of the Central Forensic Science Laboratory, Calcutta bearing on the dispute as to the true date of birth of the respondent. The Chief Justice of India thereafter observed :
".......... the question which the President has to decide is whether the date of Mr. Mitter's birth mentioned on the occasions when he appeared for the Matriculation Examination as well as for the Indian Civil Service Examination, is incorrect; and that would naturally turn upon whether it is shown that the entry in ink on the margin of the almanac showing that Mr. Mitter was born on 27-12-1904, was contemporaneously made and is correct as alleged by him. The horoscope on which Mr. Mitter relies, refers to the date and time of his birth, but that does not help Mr. Mitter very much, because it is obviously based upon information given to Jyotish-Sastri Shri Jogesh Chandra Deba Sarma on the basis of the entry in the almanac. I have carefully considered the reports made by Dr. Iyengar, the comments on them made by Mr. Mitter, the affidavits on which Mr. Mitter relies, and the almanac and the horoscope on which he bases his case. I have also taken into account all the other relevant facts relating to the past history of this dispute, the conduct of Mr. Mitter, the grounds on which he challenged the earlier orders passed in this matter, and I have come to the conclusion that it is not shown satisfactorily that the entry in ink on the margin of the almanac was made contemporaneously and is correct as alleged by Mr. Mitter. I am, therefore, unable to accept his case that the date of his birth which was shown at the time when he appeared for the Matriculation Examination as well as for the I.C.S. Examination "was exaggerated".
I would, therefore, advised the President to hold that Mr. Mitter has failed to show that he was born on 27-12-1904 and not on 27-12-1901; and that the question about his age should be decided on the basis that be was born on 27-12- 1901".
The file containing the advice was then returned to the President. It appears however that after the file was received in the President's Secretariat, it was sent to the Secretary, Ministry ofHome Affairs for putting it up before the Home Minister before submitting it to the President. The Home Secretary on September 29, 1965 put up the matter before the Home Minister with the following endorsement :
"A summary of the case will be found at slip 'Z'. The Chief Justice of India has offered his advice in his minute........ after going into the relevant material, H.M. (Home Minister) may recommend to the President ,that the age Shri J. P. Mitter may be determined in accordance with the advice of the Chief Justice of India."
Home Minister and the Prime Minister countersigned that endorsement. The file was then placed before the President on the same day i.e. September 29, 1965. The President recorded his decision that he accepted "the advice tendered by the Chief Justice of India and "decided" that the age of Sri Jyoti Parkash Mitter should be determined on the basis that he was born on the twenty-seventh December nineteen hundred and one".
31. Also, this Court cites the decision in Yash Pal V. Kartar Singh reported in AIR 2003 Punjab and Haryana 344, wherein, in paragraph No.5 it is held as follows:-
"A perusal of the aforementioned provision shows that a discretion has been vested in the Civil Court to get any scientific investigation conducted only if it thinks necessary or expedient in the interest of justice. The basic rationale of the provision is that if the opinion of the scientific investigation is going to help in extracting the truth and determining the controversy raised in the dispute before the Court then such an investigation could be permitted. However, in the present case, such investigation is not likely to help to conclusively prove that the writing dated 11.2.1998 was infact recorded earlier because the age of the ink cannot be determined on the basis of the writing. If the ink is manufactured five years before the date of the execution of the document and used on 11.2.1998 for the first time then instead of resolving any controversy it would create confusion. Therefore, no useful purpose could be served by allowing such an application. It is true that opinion of expert is relevant under Sections 45 and 46 of the Indian Evidence Act, 1872 but in the present case that has to be read with Order 26. Rule 10 A of the Code. The basis rationale is whether such scientific investigation is going to advance the cause of justice and would be necessary for adjudicating upon the rights of the parties. Therefore, I do not find any ground to interfere in the well reasoned order passed by the learned Civil Judge. The revision petition does not disclose any irregularity or illegality warranting interference of this Court in exercise of its jurisdiction under Section 115 of the Code."
32. It cannot be denied that the opinion of Handwriting expert is a relevant fact and the same is admissible in evidence. Generally speaking, the opinion offered by an expert in terms of Section 45 of the Indian Evidence Act is to be treated as a relevant one. It is the utmost duty of a Court of Law to see whether there is any reasonable and genuine case made out by a litigant in seeking aid of Law for obtaining an expert opinion in order to send the cheque for ascertaining the age of the ink in signature and other contents etc.
33. A closer scrutiny of the ingredients of Section 243 of the Criminal Procedure Code makes it clear that a valuable right is given to the Accused to examine defence witnesses. If the Revision Petitioner/Accused decides to examine an expert and to obtain his opinion, then it is his option to examine the said expert in accordance with law. The valuable right prescribed under Section 243 of the Criminal Procedure Code, is certainly not within the purview of investigation and would admit of no restriction except where the Learned Judicial Magistrate is satisfied for the reasons to be recorded in writing that the desired exercise is purely a vexatious or frivolous or otiose one or with a view to precipitate the pending proceedings with a view to defeat the ends of Justice. If an expert submits his report and tenders evidence, the trial Court is to consider the same along with other available oral and documentary evidence on record at the time of disposal of the main case.
34. It is to be remembered that the admission of the signature in the cheque/cheques alone will not prove the defence as per Section 138 of the Negotiable Instruments Act without proving the other ingredients. One such ingredient is that the cheque is drawn/has been drawn for 'Discharge of a Debt or other Liability' . To put it succinctly, whether the ingredients of Section 20 of the Negotiable Instruments Act are attracted as a matter of routine or automatically or to be gone into by the trial Court at the time of evidence being adduced by the parties in the main case (including the Petitioner/Accused as the case may be) before coming to the conclusion as to the applicability of Section 20 r/w. Section 118 of the Negotiable Instruments Act. In short, the main case S.T.C.No.32 of 2012 on the file of the trial Court is posted for evidence being let in on the side of the Petitioner/Accused. Also, he has been questioned under Section 313 of the Criminal Procedure Code. At that point of time only, the Petitioner/Accused has projected Cr.M.P.No.1728 of 2012. Further, the Petitioner/Accused has not projected favourable circumstances in his favour to allow Cr.M.P.No.1728 of 2012 in question, moreso, in view of the observations of the Honourable Supreme Court in UNION OF INDIA Vs. JYOTI PRAKASH MITTER reported in AIR 1971 SC 1093 AT 1098 TO 1100 as stated earlier and also in Yash Pal V. Kartar Singh reported in AIR 2003 Punjab and Haryana 344, wherein it is clearly stated that ..... However, in the present case, such investigation is not likely to help to conclusively prove that the writing dated 11.2.1998 was infact recorded earlier because the age of the ink cannot be determined on the basis of writing." In any event, this Court comes to an inevitable conclusion that the Petitioner/Accused has projected Cr.M.P.No.1728 of 2012, after the closure of evidence on the side of the Respondent/Complainant and also after when he has been questioned under Section 313 of the Criminal Procedure Code etc., and therefore, it is pellucidly clear that only with a view to procrastinate the pending proceedings in S.T.C.No.32 of 2012 on the file of the trial Court, he has projected Cr.M.P.No.1728 of 2012 and viewed in that perspective, the order of dismissal passed by the trial Court in dismissing Cr.M.P.No.1728 of 2012 dated 27/9/2012, in the considered opinion of this Court, does not suffer from any material irregularity or patent illegality in the eye of Law. Consequently, the Criminal Revision Petition fails.
35. In the result, the Criminal Revision Petition is dismissed. The order passed by the Learned Judicial Magistrate (Fast Track Court), Sriviliputhur in Cr.M.P.No.1728 of 2012 in S.T.C.No.32 of 2012 dated 27/9/2012 is confirmed.
Consequently, the connected Miscellaneous Petition (MD) No.1 of 2012 is also dismissed.
mvs.
To The Judicial Magistrate (Fast Track Court), Sriviliputhur