Delhi District Court
Smt. Neelam Devi vs State (Govt. Of Nct Of Delhi) on 22 May, 2015
IN THE COURT OF SH. RAKESH SYAL, SPECIAL JUDGE, (PC ACT)
& (CBI)-03, SOUTH WEST DISTRICT, DWARKA, NEW DELHI
Crl. Revision No. 04/15
In re:
Smt. Neelam Devi,
W/o Sh. Pawan Kumar,
R/o A-1/31, Sanjay Enclave,
Uttam Nagar, New Delhi-59.
............... petitioner
Versus
1. State (Govt. of NCT of Delhi)
2. Sh. Rajender Gupta,
S/o Sh. Subhash Chand,
R/o E-3/7, Raja Puri,
Uttam Nagar, New Delhi-59.
............... Respondents
Date of Institution : 18-03-2015
Date on which arguments heard : 15-05-2015
Date on which Order passed : 22-05-2015
ORDER
1. This order shall decide the revision petition filed by petitioner Smt. Neelam Devi (accused before the Ld. Trial Court) against order dated 09-03-2015 of the Ld. Trial Court, vide which her application dated 16-09-2013 for sending the documents Ex. CW1/A to Ex. CW1/C to CFSL/Handwriting Crl. Rev. No. 04/15 22-05-2015 1 of 25 Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.
Expert, along with the specimen handwriting and signature of the petitioner/accused and the complainant (respondent No. 2, Rajender Gupta herein) for examination, u/s 243 r/w sec. 293 Cr. P.C. r/w sec 73 of The Indian Evidence Act, 1872 was dismissed. Respondent No. 1, State (Govt. of NCT of Delhi) is stated to be a proforma party.
2. The relevant facts leading to filing of the Revision Petition are that Respondent No. 2/complainant Rajender Gupta had filed a complaint against the petitioner u/s 138 of The Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act'), inter-alia, alleging that he was interested to purchase accused's property bearing No. A-1/31, Sanjay Enclave, Uttam Nagar, New Delhi and the deal was finalised for Rs. 15,00,000/-. He paid the accused Rs.3,30,000/- in cash as advance and asked for six months time for remaining payment to which the accused agreed. A promissory note dated 20-09-2011 was duly signed by both the parties. After few months, the accused requested him that she was not interested in selling the property and asked for some time to return the advance money of Rs. 3,30,000/-. Complainant Rajender Gupta agreed to the same. Finally, the accused gave a post dated cheque bearing No. 459844 dated 24-12-2011 for Rs. 3,30,000/-, drawn on Canara Bank, Uttam Nagar, New Delhi, against her liability in favour of the complainant. He has also stated about an agreement dated 20-09-2011. It is further alleged that the said cheque on presentation, through Axis Bank Saving Account No. 912010011271128 at Uttam Nagar Branch, bounced with the reason, "Account is inoperative", on 13-03-2012. Averments have also been made about sending a legal notice to the accused on 12-04-2012, which Crl. Rev. No. 04/15 22-05-2015 2 of 25 Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.
was returned, and the accused failing to make the payment.
3. After recording pre-summoning evidence, the petitioner/accused was summoned. She appeared before the Ld. Trial Court. On 06-06-2013, notice u/s 251 Cr.P.C. was framed against her to which she pleaded not guilty and claimed trial. She also took the defence that the cheque bears her signatures but other particulars were not filled up by her. The cheque in question was given to one Sh. Tara Chand in blank as security in the year 2005. Complainant Rajender Gupta is stranger to her. She had not entered into any agreement with him at any point of time. No notice was ever issued by the complainant. She further stated that the documents Ex.CW1/B and Ex.CW1/C are forged by complainant Rajender Gupta in connivance with said Tara Chand. She does not have any money liability towards the complainant and the present case is a false case. On the same day i.e. 06-06-2013, the accused moved an application u/s 340/250 Cr.P.C. r/w sections 193/196/209/211 IPC seeking action against complainant Rajender Gupta.
4. Complainant Rajender Gupta examined three witnesses namely, the complainant himself as CW1, CW2 Sh. Hari Krishan and CW3 Sh. Tara Chand. Statement of the accused was recorded, wherein she stated that she is adopting her answers given in reply to notice of accusation. She herself deposed as DW1.
5. On 16-09-2013, the accused has moved an application for sending the documents, Ex. CW1/A to Ex. CW1/C to CFSL/handwriting Crl. Rev. No. 04/15 22-05-2015 3 of 25 Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.
expert, along with the specimen handwriting and signature of the accused and the complainant for examination, u/s 243 r/w sec. 293 Cr. P.C. r/w sec 73 of Evidence Act on the ground that the cheque in question i.e. Ex. 1/A does not bear the handwriting of the applicant/accused and the same bears the handwriting of the complainant which can be verified by the CFSL. It is further stated that the cheque in question was given to Mr. Tarachand in the year 2005 in blank, bearing her signature, as security and further it can be verified by sending the cheque in question to CFSL by verifying the age of ink used on cheque. The documents Ex.1/B (undertaking) & Ex. 1/C (Promissory Note) does not bear either the signatures or handwriting of the applicant/accused and the same bears the handwriting of the complainant. The applicant/accused was/is not the owner of any immovable property anywhere at any point of time and she had not received any money from the complainant. The complainant has filed the present case on the basis of false and fabricated documents which does not bear signatures of the applicant/accused and the complainant is a stranger of the accused.
6. On 25-11-2014, the Ld. Trial Court passed the following order on the application:-
"An application u/s 243 read with section 293 CrPC read with section 73 Evidence Act is pending seeking that the handwriting and signature on Ex. CW1/A, Ex. CW1/B as well as Ex. CW1/C be sent to handwriting expert. The accused has admitted to the signature on Ex. CW1/A. In that case there is no need to send the document Ex. CW1/A to handwriting expert.
Let the documents Ex. CW1/B and Ex. CW1/C be examined by private handwriting expert at the expense of the accused. The accused is directed to take steps within seven days."
Crl. Rev. No. 04/15 22-05-2015 4 of 25 Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.
7. The petitioner challenged the aforesaid order in a Revision Petition bearing No. 08/14, titled Neelam Devi Vs. Rajender Gupta. Vide order dated 02-02-2015 of this Court, it was observed, "6. It can be seen that in her application dated 16-09-2013, the petitioner had prayed for sending the documents Ex. CW1/A to Ex. CW1/C, along with specimen handwriting and signature of the accused and complainant for examination. Vide order dated 25-11-2014, Ld. Trial Court held that there is no need to sent Ex. CW1/A to the handwriting expert. It was further held that the document Ex. CW1/B and Ex. CW1/C be examined by private handwriting expert at the expense of the accused and the accused was directed to take steps within seven days. However, it is not clear whether the handwriting/signature on Ex. CW1/B and Ex. CW1/C are to be compared with handwriting/signature of accused only or both the accused and the complainant and what steps are required to be taken by the petitioner/accused. The order deciding such an application ought to have covered all the issues/aspects involved therein."
The order dated 25-11-2014 of the Ld. Trial Court was set aside and the matter was remanded back to the Ld. Trial Court to hear arguments on the application dated 16-09-2013, u/s 243 r/w sec. 293 Cr. P.C. r/w sec 73 of Evidence Act, afresh, and pass a fresh order covering all the issues/aspects involved therein in accordance with law.
8. The Ld. Trial Court, after hearing the parties, passed the impugned order, wherein it was held, "In the present case, during cross examination, the accused has not denied that the cheque in question Ex.CW1/A bears her signature. The accused states that she wants to prove that the cheque in question has been filled by the complainant. The complainant has been cross examined regarding this aspect. The complainant in cross examination has himself Crl. Rev. No. 04/15 22-05-2015 5 of 25 Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.
admitted that the cheque in question has been signed and the other particulars were filled in different inks.
He further stated that the same has not been filled in his presence. No suggestion was given by the accused that the cheque in question has been filled by him. Accused has admitted that the cheque in question bears her signature. In that case, there is no need for sending cheque in question to CFSL. Reliance also placed on judgment of Hon'ble Delhi High Court titled as "Ravi Chopra vs. State & Anr. Dated 13.03.2008."
Accused has also stated that Ex.CW1/B and Ex.CW1/C be sent to CFSL as they do not bear her signature. When the complainant was cross examined regarding this aspect, he has stated that he cannot say whether Ex.CW1/B and Ex.CW1/C bears her signature or not. He further admits that they were not executed in his presence. He has also stated that when the documents Ex.CW1/B and Ex.CW1/C were given to him, they were fully filled up. As the accused has denied her signature on the documents Ex.CW1/B and Ex.CW1/C. On the other hand, complainant has stated that he cannot say whether they bear the signature of the accused or not. In that case, in view of the specific denial of the accused, no useful purpose will be served by sending the said documents to CFSL because if report has received stating that same do not bear signature of the accused that will not affect the proceedings of the case. Complainant has stated that the documents have not been executed in his presence. The same were brought by the accused duly filled. He himself stated that he cannot say whether they were signed by the accused or not.
Moreover, accused has admitted that cheque in question bears her signature and the present case is based on cheque. No useful purpose will be served by sending the documents to the CFSL. As far as contentions that the same have been filled by the complainant, no such suggestion has been given to the complainant in the cross examination that the same were filled by him. Accordingly, present application stands dismissed."
9. The petitioner has assailed the order dated 09-03-2015 of the Ld. Trial Court, inter-alia, on the ground that the Ld. Trial Court has ignored the fact that complainant Rajender Gupta has specifically pleaded in para No. 1 of his Evidence by way of Affidavit that Promissory Note dated 20-09-2011 Crl. Rev. No. 04/15 22-05-2015 6 of 25 Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.
was duly signed by both the parties. Further, in reply dated 11-11-2013 to aforesaid application u/s 243 r/w sec. 293 Cr.P.C. r/w sec 73 of Evidence Act, he has in para No. 3 stated that document Ex.1/B & Ex.1/C were duly signed by the petitioner, in para No. 5 that the petitioner has signed all the documents in question, and the petitioner is denying her signature as well as her handwriting on the aforesaid document since beginning. It is further stated that the Ld. Trial Court has failed to consider that document Ex.1/B and Ex. 1/C have been filed by Respondent No. 2 along with the complaint to support his claim of Rs.3,30,000/- which is mentioned in Ex.1/A. Further, if the document Ex.1/B and Ex.1/C are false and fabricated then the case of Respondent No. 2 goes in toto and further he would be liable to be prosecuted for perjury. It is also stated that during cross-examination of respondent No. 2, Rajender Gupta, he gave vague answers to save his skin which is apparent from the fact that in reply dated 11-11-2013, respondent No. 2 claimed that all the documents were signed by the petitioner. It is further stated that debt in cases u/s 138 NI Act must be legally enforceable debt and if the debt is not legally enforceable then the case would go and if the documents in support of cheque in question are false and fabricated then this itself entitles the petitioner/accused to acquittal. It is also stated that the evidence of CW 3, Sh. Tara Chand, who was called by respondent No. 2 u/s 311 Cr.P.C., and has categorically stated that petitioner has signed the said pronote and receipt in his presence, has been ignored.
10. Sh. Neeraj Dahiya, Ld. Counsel for the petitioner has argued that the petitioner has been falsely implicated by respondent No. 2 by forging the Crl. Rev. No. 04/15 22-05-2015 7 of 25 Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.
documents. She is not owner of the property which is shown to have been agreed to be sold to respondent No. 2. The cheque, Ex. CW1/A which was handed over to CW 3 Sh. Tara Chand, in blank, in the year 2005, bears her signatures but the remaining particulars have not been filled by her. The agreement, Ex. CW 1/B and the Promissory Note, Ex. CW 1/C do not bear her or her husband's signatures but these have been forged by respondent No. 2 in connivance with the said Tara Chand. He submits that in this regard, an application u/s 340 Cr.P.C. filed by the petitioner is also pending. Ld. Counsel contended that if any forged document is filed by respondent No. 2/complainant, the petitioner/accused has a right to get the same examined by a Govt. Handwriting Expert. He further argued that earlier, vide order dated 25-11-2014, the Ld. Trial Court has allowed the documents, Ex.CW1/B and Ex.CW1/C to be examined by a Private Handwriting Expert. However, when the matter was remanded back to the Ld. Trial Court to pass a fresh order covering all the issues/aspects involved therein in accordance with law, the Ld. Trial Court, has contrary to its own order, dismissed the application in toto. He has also relied upon T. Nagappa Vs. Y.R. Muralidhar, (2008) 5 SCC 633, Gulzar Ali Vs. State of H.P., (1998) 2 SCC 192 and Nandkumar Vs. Vishwas, (Cril. Writ Petition No. 190/2011, decided by Hon'ble Bombay High Court on 04-08-2011). Ld. counsel has also submitted that petitioner is not able to afford the fees of any private handwriting expert.
11. Sh. S.B. Sharma, Ld. Counsel for respondent No. 2 has argued that the Ld. Trial Court has passed a detailed order in compliance with order dated 02-02-2015 in accordance with law. He contends that the petitioner has Crl. Rev. No. 04/15 22-05-2015 8 of 25 Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.
signed differently on different papers and that the documents, Ex. CW1/B and Ex. CW1/C also bear signature of husband of the petitioner/accused.
12. However, later on during the arguments, Sh. S.B. Sharma, Ld. counsel for respondent No. 2 submitted that said respondent No. 2/ complainant Rajender Gupta is willing to give his specimen handwriting/signatures and he has no objection if the petition is allowed and questioned documents and admitted/specimen handwriting/signatures of both respondent No. 2/complainant Rajender Gupta and petitioner/accused are sent for examination by GEQD. He further submitted that the specimen handwriting/signature and finger prints of husband of the petitioner may be also sent for comparison. Sh. Neeraj Dahiya, Ld. counsel for petitioner submitted that he has no objection to the same and that he would produce Sh. Pawan Kumar, husband of the petitioner before the Ld. Trial Court for the said purpose.
13. I have heard Sh. Neeraj Dahiya, Ld. Counsel for the petitioner, Sh. S.B. Sharma, Ld. Counsel for respondent No. 2 and have perused the record.
14. It is well settled that the truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. In Crl. Rev. No. 04/15 22-05-2015 9 of 25 Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.
this regard , a reference can be made to Maria Margadia Sequeria Vs. Erasmo Jack De Sequeria (D), (2012) 5 SCC 370, wherein the Hon'ble Supreme Court held, " 31. In this unfortunate litigation, the Court's serious endeavour has to be to find out where in fact the truth lies. The truth should be the guiding star in the entire judicial process.
32. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty.
33. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.
34. In Mohanlal Shamji Soni v. Union of India 1991 Supp (1) SCC 271, this Court observed that in such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions-whether discretionary or obligatory-according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done.
35. What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.
36. In Ritesh Tewari and Another v. State of Uttar Pradesh and Others (2010) 10 SCC 677, this Court reproduced often quoted quotation which reads as under:
" Every trial is voyage of discovery in which truth is the quest"
The Hon'ble Apex Court further held, Crl. Rev. No. 04/15 22-05-2015 10 of 25 Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.
" 52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth." (emphasis supplied)
15. The said judgment was followed by the Hon'ble Supreme Court in A. Shanmugam V. Ariya Kshatriya Rajkula V. amsathu Madalaya Nandhavana Paripalanai Sangam represented by its President etc. (Civil Appeal No.s 4012-4013 of 2012, decided on 27-4-12), wherein the Hon'ble Apex Court laid down the following principles:-
" 1. It is the bounden duty of the Court to uphold the truth and do justice.
2. Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts.
3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful.
4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrong doer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice.
5. It is the bounden obligation of the Court to neutralize any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process."
6 to 8 xxxxx"
16. It is well settled that the accused has a right to fair trial and she is to be given an opportunity to defend herself. Sub Section (2) of section 243 Cr. P.C. stipulates, Crl. Rev. No. 04/15 22-05-2015 11 of 25 Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.
" 243 Evidence for defence.- (1) xxxxx (2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing:
Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice. (3) xxxxx"
17. It is pertinent to refer to T. Nagappa Vs. Y.R. Muralidhar, (2008) 5 SCC 633, wherein the Hon'ble Supreme Court held, " 8. An accused has a right to fair trial. He has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognised by Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure, ..........
9. What should be the nature of evidence is not a matter which should be left only to the discretion of the court. It is the accused who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused in terms of sub- section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses, etc. If permitted to do so, steps therefor, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant." (emphasis supplied)
18. In Natasha Singh Vs. CBI, (2013) 5 SCC 741, the Hon'ble High Crl. Rev. No. 04/15 22-05-2015 12 of 25 Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.
Court held, " 15. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person's right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. [vide: Talab Haji Hussain v. Madhukar Purshottam Mondkar and Anr.
MANU/SC/0028/1958; AIR 1958 SC 376; Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors. MANU/SC/0322/2004: AIR 2004 SC 3114; Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors. MANU/SC/1344/2006: AIR 2006 SC 1367; Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.), MANU/SC/0001/2007: (2007) 2 SCC 258; Vijay Kumar V. State of U.P and Anr. MANU/SC/0891/2011: (2011) 8 SCC 136; and Sudevanand v. State through CBI MANU/SC/0041/2012: (2012) 3 SCC 387]" (emphasis supplied)
19. It is also pertinent to refer to Kalyani Baskar (Mrs.) Vs. M.S. Sampoornam (Mrs.), (2007) 2 SCC 258, wherein the Hon'ble Supreme Court held, " 12. Section 243 (2) is clear that a Magistrate holding an inquiry under Cr. P.C. in respect of an offence triable by him does not exceed his powers under Section 243 (2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by an handwriting expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good Crl. Rev. No. 04/15 22-05-2015 13 of 25 Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.
material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. " Fair trial" includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. ........" (emphasis supplied)
20. In Pravinkumar Lalchand Shah Vs. State of Gujarat and Anr., MANU/GJ/0169/1981, the Hon'ble High Court of Gujarat held, " 17. In view of the decisions quoted above, we feel that it should not be the prosecution alone who should have the benefit of scientific method and we feel that the accused also must have that benefit and in order to have that benefit and to give him fair opportunity of defending himself, we consider that the enlarged photographs are a must and we also consider that because the State handwriting expert has based his opinion and the reasons for his conclusion after perusing the enlarged photographs and also that because the enlarged photographs will be necessary to aid the accused and also the Court for coming to the proper conclusion about the handwriting, those enlarged photographs can be said to be the documents on which the prosecution proposes to rely and therefore, we think that those documents must be available to the accused before the State handwriting expert steps into the witness box or at least to be available to the accused free of cost during the trial to get help from his expert, ......" (emphasis supplied)
21. In Nandkumar v Vishwas (supra), in a case under section 138 NI Act, accused had contended that the complainant used to maintain diary of the loan transaction by making entry of daily collection received from the accused in his own handwriting. The complainant also gave a chit in his own handwriting to the accused. The complainant was confronted with the said documents during his cross examination which he denied. The accused Crl. Rev. No. 04/15 22-05-2015 14 of 25 Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.
moved an application for sending the said documents to the handwriting expert for his opinion. The Ld. Trial Court rejected the said application. Revision petition against the said order was dismissed by the Ld. Additional Sessions Judge. In a challenge to the said order, the Hon'ble Bombay High Court held, " 18. Moreover, as observed by the Hon. Apex Court, in the case of T. Nagappa Vs. Y.R. Muralidhar (supra), what should be the nature of the evidence of the petitioner / accused should be left open to him, and accused knows how to prove his defence and ordinarily accused should be allowed to approach the Court for obtaining its assistance with regard to summoning of witnesses etc. In the instant case, since the accused preferred application Exhibit 48, requesting to send the documents at Exhibits 29/1 and 29/2, bearing disputed handwriting of the complainant, along with the admitted handwriting of the complainant, for obtaining handwriting expert's opinion, in fact, which should have been allowed by the learned trial court or, at least, by the learned Sessions Court, in the revision, to meet the ends of justice. However, simultaneously, there is no doubt that the accused should not be permitted to protract the trial unnecessarily. Hence, the apprehension posed by the respondent no.1, in respect of protracting the trial by the accused, can be met with by giving specific directions to the handwriting expert to submit the expert's opinion within stipulated period and thereby, endeavor can be made to achieve the spirit of Section 143, Sub- Sections 2 and 3, of the Negotiable Instruments Act." (emphasis supplied) The Hon'ble High Court further held, " 23. In the result, present Petition is allowed, and the order passed by the learned Judicial Magistrate (F.C.), Court No.6, Latur, below Exhibit 48, in S.T.C. No. 1734/2009, dated 11th June 2010, and also the order passed by the learned Additional Sessions Judge, Latur, in Criminal Revision No. 114/2010, dated 7th January 2011, stand quashed and set aside, and the application Exhibit 48, dated 13-4-2010, preferred by the petitioner / accused, in S.T.C. No. 1734/2009, stands allowed to the extent of prayer clause 1 thereof, and it is directed that the document No.1 below Exhibit 29 i.e. "chit of transaction", and document No.2 below Exhibit 29 i.e. "diary of the Crl. Rev. No. 04/15 22-05-2015 15 of 25 Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.
transaction", and the admitted handwriting of the complainant which is to be obtained by the learned Trial Court before it from the complainant, be sent to the Government Handwriting Expert for obtaining the expert's verification / opinion in respect of the disputed handwriting on Exhibits 29/1 and 29/2, ......."
22. In Gulzar Ali v/s State of H.P. (supra), the Hon'ble Supreme Court observed, " If those letters are genuine, no doubt, they would reflect the mind of A-1 and A-2 towards the deceased. PW 20 (M.L. Sharma), Government Examiner on questioned documents, after comparing the handwriting in the said letters gave an opinion that both were written by the accused. An attempt was made by the accused, through the evidence of DW 1 (N.K. Jain who claimed to be an expert in the science of handwriting) to show that opinion of the Government Examiner is basically faulty. The High Court has observed that "there is a natural tendency on the part of an expert witness to support the view of the person who called him" and preferred the opinion of PW 20 M.L. Sharma. The said observation of the High Court cannot be downstaged, for, many so-called experts have been shown to be remunerated witnesses making themselves available on hire to pledge their oath in favour of the party paying them." (emphasis supplied)
23. In order to appreciate the matter in issue, it is pertinent to refer to relevant facts of the case as well as evidence and other material on record. As per the complaint dated 07-05-2012, petitioner/accused had entered into an agreement with respondent No. 2/complainant Rajender Gupta for the sale of property bearing No. A/31, Sanjay Enclave, Uttam Nagar, New Delhi-110059 for a sum of Rs. 15,00,000/- and he had paid an advance of Rs. 3,30,000/- in cash to the petitioner/accused and a promissory note, Ex.CW1/C was duly signed by both the parties. He also stated about the agreement, Ex.CW1/B. It is further alleged that after few months, the petitioner/accused requested that she was not interested to sell the above property and she be Crl. Rev. No. 04/15 22-05-2015 16 of 25 Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.
given some time to return the advance money, to which the complainant agreed. Thereafter, she had given the cheque, Ex.CW1/A. Complainant has deposed on the same lines in his affidavit, dated 07-05-2012, Ex.CW1/A-1. In reply dated 23-08-2013, to application u/s 340/250 Cr.P.C. r/w sections 193/196/209/211 IPC, filed before the Ld. Trial Court, complainant has, inter- alia, stated that the documents, Ex.CW1/A, Ex.CW1/B & Ex.CW1/C filed by him are original documents of petitioner/accused and the same are duly signed by the petitioner/accused and her husband. During his cross- examination on 23-08-2013, he stated that he had seen the photocopy of documents of plot which he was going to purchase. He denied that he had not seen the documents of the said property at any point of time. He further stated that the cheque in question was given to him on 24-12-2011 and it was completely filled up and nothing was filled up in his presence. The documents, Ex.CW1/B and Ex.CW1/C were brought by the accused to the office of Sh. Tara Chand (Dealer) and these were completely filled up. He admitted that he cannot say whether the documents, Ex.CW1/B and Ex.CW1/C bear the signature of the accused because the same were not executed in his presence. However, he also denied that the documents, Ex.CW1/B and Ex.CW1/C do not bear the signatures of the accused. Further, in reply dated 11-11-2013, to application filed by accused for sending documents to CFSL/Handwriting Expert for examination, complainant has, inter-alia, stated that the documents Ex.CW1/B (undertaking) and Ex.CW1/C (Promissory Note) were duly signed by accused.
24. CW 3 Sh. Tara Chand, examined by the complainant on Crl. Rev. No. 04/15 22-05-2015 17 of 25 Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.
22-05-2014 has deposed that the accused in refund of earnest money, gave a cheque, Ex.CW1/A to him to be given to the complainant. During his cross- examination, he denied that the plot was in the name of Smt. Krishna Devi through registered documents since the year 2006. He further deposed that he also handed over to the complainant one pronote and one receipt. Accused Neelam signed the said pronote and receipt in his presence and the same were prepared in his presence. The person who came along with the accused filled up the same. He denied the suggestion that the accused had not signed the documents Ex. CW1/B and Ex.CW1/C at any point of time. He admitted that the documents Ex. CW1/C does not bear the signatures of executant at points A & B. He denied that he along with the complainant had forged the documents Ex.CW1/B and Ex.CW1/C with a view to extort money from the accused.
25. However, according to the petitioner, the complainant is a total stranger to him and that no agreement, Ex.CW1/B or promissory note, Ex.CW1/C was executed by her. The property in question is in the name of her mother in law, Smt. Krishna Devi and thus, she could not have entered into any agreement to sell the said property. While deposing as DW 1 on 15-10-2014, the accused testified that property bearing No. A/31, Sanjay Enclave, Uttam Nagar was in the name of her mother in law Smt. Krishna Devi. She has also produced the documents, Ex.DW1/A (colly) with respect to the said property. She also stated that Ex.CW1/A was not in her handwriting and it was not written by her. She does not know how to write. She had given the cheque in question to one Tara Chand Halwai as she had taken Rs.
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10,000/- in the year 2005-2006 only after signing it and the particulars were left blank. She had returned the money to Tara Chand Halwai in 12 installments of Rs.1,000/- each. When she demanded her cheque, he told her that he would search for it and return to her but he did not return the cheque. She further testified that documents Ex.CW1/B and Ex.CW1/C are not in her handwriting and do not bear her signature anywhere. Neither it bear signatures of her husband. She had not executed any such document. She had never entered into any deal for selling her property to the complainant. She does not have any property in her name in Delhi. During her cross examination on 25-11-2014, she denied that her mother in law wanted to sell her property through her and that is why the complainant had paid her the money. She further denied that she signed in different way on different documents.
26. From the aforesaid, it can be seen that the case of respondent No. 2/complainant is based entirely on the allegation that the petitioner had agreed to sell her property bearing No. A-1/31, Sanjay Enclave, Uttam Nagar, New Delhi - 110059 to respondent No. 2, Rajender Gupta for a sum of Rs. 15,00,000/- and the said respondent had given her an advance sum of Rs. 3,30,000/-. Later, when she did not want to sell the above property, she had given the cheque in question to respondent No. 2 towards refund of the above amount. According to respondent No. 2, the petitioner had executed agreement, Ex. CW1/B and promissory note, Ex. Ex. CW1/C and given the cheque, Ex.CW1/A. The above facts have been denied in toto by the petitioner.
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27. It can be seen that the agreement, Ex.CW1/B is purportedly signed by petitioner/accused, Neelam Devi, respondent No. 2/complainant Rajender Gupta, and witnesses Sh. Tara Chand (CW3) and Sh. Virender Singh and also bears finger/thumb impressions purportedly of Sh. Pawan Kumar, husband of the petitioner. The promissory note, Ex.CW1/C has been purportedly signed by petitioner/accused, Neelam Devi and witnessed by Sh. Virender Singh and Sh. Tara Chand and the Receipt, Ex.CW1/C has been purportedly signed by Sh. Pawan Kumar, husband of the petitioner/accused and respondent No. 2/complainant Rajender Gupta.
28. The documents Ex.CW1/B and Ex.CW1/C allegedly form the basis of the transaction between the parties and the liability of the petitioner/accused. However, the petitioner has disputed the execution of these documents by her. Petitioner has also stated that she is not owner of the property in question and thus, there was no question of her entering into any agreement for sale of the same. Similarly, the person in whose handwriting the particulars of the cheque, Ex.CW1/A have been filled up is also disputed.
29. From the evidence and other material on record and the rival submissions made on behalf of both the parties, it appears that, inter-alia, the following points are required to be determined :-
(i) Whether petitioner/accused Neelam Devi has signed Agreement dated 20-09-2011, Ex.CW1/B or Promissory Note/Receipt dated 20-09-2011, Crl. Rev. No. 04/15 22-05-2015 20 of 25 Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.
Ex.CW1/C or whether she has written anywhere in Cheque No. 459844 dated 24-12-2011, Ex. CW1/A, Agreement dated 20-09-2011, Ex. CW1/B or Promissory Note/Receipt Ex.CW1/C?
(ii) Whether Sh. Pawan Kumar, husband of petitioner/accused Neelam Devi has signed on Promissory Note/Receipt dated 20-09-2011, Ex.CW1/C or whether he has put his finger/thumb impressions on agreement dated 20-09-2011, Ex.CW1/B or whether he has written anywhere in Cheque No. 459844 dated 24-12-2011, Ex. CW1/A, Agreement dated 20-09-2011, Ex. CW1/B or Promissory Note/Receipt Ex.CW1/C?
(iii) Whether respondent No. 2/complainant Rajender Gupta has signed on Agreement dated 20-09-2011, Ex.CW1/B or Promissory Note/Receipt dated 20-09-2011, Ex.CW1/C as Neelam Devi or Pawan Kumar or whether he has written anywhere in Cheque No. 459844 dated 24-12-2011, Ex. CW1/A, Agreement dated 20-09-2011, Ex. CW1/B or Promissory Note/Receipt Ex.CW1/C?
(iv) What is the age of ink used in the signature of petitioner/accused Neelam Devi on the Cheque No. 459844 dated 24-12-2011, Ex. CW1/A?
An opinion is required to be formed as to the identity of aforesaid handwriting or finger impressions. Thus, the opinion of an expert in the science of identity of handwriting or finger impressions on the aforesaid points, would be relevant.
30. Further, evidence of persons who have purportedly executed/written the above documents appears to be essential to the just Crl. Rev. No. 04/15 22-05-2015 21 of 25 Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.
decision of the case. Ld. Trial Court is empowered to summon and examine any person whose evidence appears to it to be essential to the just decision of the case. Ld. Trial Court can also direct any person present before it to write any words or figures or put finger impressions for the purpose of comparing the same with any words or figures or finger impressions alleged to be written or put by such person. If, it is found, as asserted by the petitioner that she had not entered into any agreement to sell the property or executed the documents in question, it will have a bearing on the merits of the case.
31. It is also pertinent to note that vide order dated 25-11-2014, Ld. Trial Court has itself allowed the documents Ex.CW1/B and Ex.CW1/C to be examined by private Handwriting Expert. However, vide order dated 09-03-2015, the Ld. Trial Court has dismissed the application dated 16-09-2013. The reasons given by Ld. Trial Court in order dated 16-09-2013, for dismissing the application that if the report is received stating that same (Ex.CW1/B and Ex.CW1/C) do not bear signature of the petitioner/accused that will not affect the proceedings of the case or that the petitioner/accused had admitted that cheque in question bears her signature and the present case is based on cheque, are misplaced. Petitioner has a right to lead evidence to show that she had no liability to pay respondent No. 2/complainant Rajender Gupta. In this case, evidence regarding the cheque, Ex.CW1/A has to be appreciated in conjunction with the evidence regarding execution of agreement dated 20-09-2011, Ex.CW1/B and Promissory Note dated 20-09-2011, Ex.CW1/C, since the liability of petitioner to pay respondent No. 2 is alleged to have arisen out of the agreement recorded in the said Crl. Rev. No. 04/15 22-05-2015 22 of 25 Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.
documents. The fact that complainant in his cross-examination has stated that the particulars of the cheque were not filled in his presence or that he cannot say whether Ex.CW1/B and Ex.CW1/C bear signature of the petitioner/accused or not or that the documents have not been executed in his presence or that the same were brought by the petitioner/accused duly filled, is no ground to deny the petitioner an opportunity to lead evidence of expert in her defence. Application moved by the petitioner can be refused only if it is made for the purpose of vexation or delay or defeating the ends of justice. No such ground has been mentioned by the Ld. Trial Court in its order dated 07-03-2015. The evidentiary value of expert witness can be appreciated only after the same is led before the court and arguments are advanced at the conclusion of trial. Moreover, it is the petitioner/accused, who knows how to prove her defence. In the instant case, the application dated 16-09-2013 moved by the petitioner/accused prima-facie appears to be bonafide.
32. In view of the aforesaid discussion and the peculiar facts and circumstances of the case, it is considered that the petitioner/accused must be given an effective and proper opportunity to defend herself. If the complainant is relying upon some documents purportedly executed by the accused, fairness demands that opportunity is given to the petitioner/accused to rebut the same by leading evidence through Handwriting/Finger Print Expert. Opinion of such an expert on the questioned signatures/finger print would only assist the Court in arriving at the truth. Moreover, Sh. S.B. Sharma, Ld. counsel for respondent No. 2 has also submitted that he has no objection if the revision petition is allowed and the documents in question as well as Crl. Rev. No. 04/15 22-05-2015 23 of 25 Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.
admitted/specimen handwriting/signature/finger prints of respondent No. 2/complainant Rajender Gupta, petitioner/accused Neelam Devi as also her husband, Sh. Pawan Kumar are sent to the the Govt. Handwriting/Finger Print Expert for examination.
33. In view of the aforesaid discussion, the revision petition is allowed and the order dated 09-03-2015 is set aside. Accordingly, the application dated 16-09-2013 moved by the petitioner/accused before the Ld. Trial Court is allowed and it is directed as under :-
(A) The following documents be sent by the Ld. Trial Court to FSL, Rohini, Delhi for opinion of Govt. Document/Handwriting/Finger Impressions Expert on the points mentioned in para 29 above :-
(i) Cheque No. 459844 dated 24-12-2011, Ex.CW1/A, Agreement dated 20-09-2011, Ex.CW1/B and Promissory Note/Receipt dated 20-09-2011, Ex.CW1/C,
(ii) Admitted handwriting/signatures of petitioner/accused Neelam Devi and respondent No. 2/complainant Rajender Gupta, as available on judicial record,
(iii) Specimen handwriting/signatures of petitioner/accused Neelam Devi and respondent No. 2/complainant Rajender Gupta to be obtained by the Ld. Trial Court before it, and
(iv) Specimen handwriting/signatures and finger/thumb impressions of Sh. Pawan Kumar, to be obtained by the Ld. Trial Court before it. (B) Ld. Trial Court may also add any other query, which may appear to it to be relevant, for opinion of the Govt. Document/Handwriting/Finger Impressions Expert.
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Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.
(C) Ld. Trial Court shall, after obtaining the specimen handwriting/signature
and finger/thumb impressions as above, send the aforesaid documents to FSL, Rohini, Delhi expeditiously and obtain report/opinion therefrom in a time bound manner.
32. Any opinion expressed hereinbefore shall not have any bearing on the merits of the case.
33. A copy of this order along with Trial Court Record be sent to the Ld. Trial Court.
34. Revision file be consigned to the Record Room.
Announced in the Open Court today on 22nd day of May, 2015 (Rakesh Syal) Spl. Judge, (PC Act) & (CBI) -03, Dwarka Courts, New Delhi (ra) Crl. Rev. No. 04/15 22-05-2015 25 of 25 Neelam Devi Vs. State (Govt. of NCT of Delhi) & Anr.