Karnataka High Court
Prakash S/O Channappa Parappanavar vs Rudrappa Parappa Deyannavar on 1 April, 2019
Author: H.P.Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 01ST DAY OF APRIL, 2019
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.100080/2019
BETWEEN:
PRAKASH
S/O: CHANNAPPA PARAPPANAVAR,
AGE: 55 YEARS, OCC: LIC AGENT,
R/O: K.A. GIRIYAL KITTUR,
TQ: BAILHONGAL, DIST: BELAGAVI.
...PETITIONER
(BY SMT. SUMANGALA A.CHAKALABBI, ADVOCATE)
AND:
RUDRAPPA PARAPPA DEYANNAVAR
AGE: 53 YEARS,
OCC: EX-ARMY AND AGRICULTURE,
R/O: UDAKERI, TQ: BAILHONGAL,
DIST: BELAGAVI.
...RESPONDENT
(BY SRI. S.B.DEYANNAVAR, ADVOCATE/HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C., SEEKING TO SET ASIDE
THE ORDER DATED 06.03.2019 PASSED BY THE II ADDL.
DISTRICT AND SESSIONS JUDGE BELAGAVI IN CRIMINAL
APPEAL NO.36/2017 AND ALLOW THE APPLICATION FILED BY
THE REVISION PETITIONER/APPELLANT UNDER SECTION 45
OF INDIAN EVIDENCE ACT, THE PETITIONER FILED APPEAL
AGAINST THE JUDGMENT AND ORDER IN C.C.NO.600/2013
U/S. 138 OF N.I.ACT AND TO PASS SUCH ANY OTHER ORDER.
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THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
I have heard the counsel for petitioner and learned counsel for respondent.
2. Though this matter is listed for admission, with the consent of both the parties the matter is taken up for final hearing.
3. The present petition is filed by the accused invoking Section 397 r/w 401 of Cr.P.C., praying this Court to set aside the order dated 06.03.2019 on the file of the II Addl. District and Sessions Judge, Belagavi in Crl.A.No.36/2017 dismissing the application filed under Section 45 of the Indian Evidence Act.
4. The factual matrix of the case is that respondent herein has filed the complaint before the lower Court under Section 200 of Cr.P.C. for the offence punishable 3 under Section 138 of N.I.Act. The Court below after considering the material convicted the petitioner herein for the offence under Section 138 of N.I.Act. Being aggrieved by the judgment of conviction, the petitioner preferred an appeal and in the said appeal, the petitioner filed an application under Section 45 of Evidence Act, praying the Court below to send the cheque for hand writing expert with regard to the hand writings available on the cheque, the First Appellate Court has rejected the application. Hence, the present revision petition is filed before this Court.
5. The grounds urged in this petition is that the very finding of the Court below is arbitrary, illegal and opposed to law. The defense of the accused that he had no transaction with the complainant and complainant has not properly proved the transaction and the date and cause of issuance of the impugned cheque. When the accused disputed the hand writing it was bound 4 and duty of the trial Court to determine the veracity of the contention of the accused in the exercise of the power under the Indian Evidence Act. The Appellate Court has ignored the law to the effect and failed to appreciate the reasons mentioned in the application for seeking an order to send the document to hand writing expert. Hence, prayed this Court to set aside the impugned order.
6. The counsel for the petitioner apart from the grounds urged in the petition also relied upon the judgment reported in (2008) 5 SCC 633 in the case of T.Nagappa Vs Y.R.Muralidhar, and brought to the notice of this Court paragraph No.7 of the judgment that, when a contention has been raised that the complainant is misused the cheque, even in a case where a presumption can be raised under Section 118(a) or 139 of the said Act, an opportunity must be granted to the accused for adducing evidence in rebuttal 5 thereof. As the law places the burden on the accused, he must be given an opportunity to discharge it. The counsel also referring paragraph No.8 contend that an accused has a right to fair trial and he has a right to defend himself and also brought to the notice of this Court Section 243(2) of Cr.P.C. regarding giving an opportunity to the accused and contend that an opportunity is given to the accused to prove his defense.
7. Per contra, learned counsel appearing for the respondent/complainant in his arguments he vehemently contends that this is the 6th application is filed before the First Appellate Court and earlier the counsel for petitioner has filed an application under Section 391 of Cr.P.C. and First Appellate Court has allowed the said application and filed another application under Section 311 of Cr.P.C. to recall the witnesses and those applications are also allowed and permitted to cross-examine the witnesses and when the 6 case is set down for the arguments, again the petitioner herein filed this application under Section 45 of Evidence Act and this application is also second application under the very same provision and earlier application filed under Section 45 of the Evidence Act was also withdrawn and the petitioner is coming in the way of disposal of the case by filing one or the other application and contends that this application has to be dismissed with exemplary costs.
8. Having heard the arguments of the counsel for petitioner and also counsel for respondent and on perusal of the records, the complaint was filed in 2013 and the same was numbered in 2013 and the Court below disposed of the matter in 2017 and as against the judgment of the conviction the appeal is filed before the First Appellate Court in 2017. Admittedly, no dispute that an application is filed under Section 391 Cr.P.C. and also an application is filed under Section 311 of 7 Cr.P.C., and those applications are also allowed by the First Appellate Court and giving an opportunity to place the additional documents before the First Appellate Court. Apart from that the applications filed under Section 311 of Cr.P.C., also allowed and given an opportunity to cross-examine the witness. On perusal of the application, which is filed before the Court below under Section 45 of Evidence Act, the main contention of the petitioner herein-in paragraph No.4 of the application that during the course of cross-examination, the respondent categorically admitted that he himself filled up the counter foil and thereafter denied that the contents of Exs.P3 and P4 have not been fulfilled by him and the same are fulfilled by some one in the bank. Hence, the same has to be proved by sending the documents to the hand writing experts and opinion of hand writing expert is necessary. The Court below giving an opportunity to the complainant also to 8 consider the matter on merits, while rejecting the application, the Court below has given the reasons that this petitioner has filed an application under Section 391 of Cr.P.C. and the same was allowed. When the said application was filed again and one more application was filed under Section 311 of Cr.P.C. and the same was allowed. The witness also cross-examined and Bank Manager also cross-examined and the petitioner having the habit of filing one or the other reasons the applications and postponing the matter. Further observed that the petitioner has admitted the signature available on the cheque and present application is filed only with regard to the hand writings on the cheque and the same cannot be considered. The Court can also exercise the powers under Section 73 of Evidence Act to compare the signature as well as the hand writings and for all these reasons the application is rejected.
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9. Having considered the reasons assigned in the order and also the grounds urged in the application, the main contention is in order to know the hand writings of the contents of the cheque, the document has to be sent to the hand writing expert. I would like to quote the judgment of the Apex Court passed in Criminal Appeal Nos.230-231 of 2019 in the case of Bir Singh Vs Mukesh Kumar, Wherein the Hon'ble Apex Court in paragraph No.38 of the judgment has held that even if a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not issued discharging of a debt or liability by adducing evidence. When the Apex Court has given finding that the same itself would not invalidate the cheque, the question of sending the document for hand writing experts does not 10 arise. The other contention of the petitioner's counsel that there are contrary answers from the mouth of complainant with regard to the hand writings of the complainant and the same can be make use of this petitioner while arguing the matter on merits. Instead of it discloses that several applications are filed by the petitioner before the First Appellate Court under Section 391 of Cr.P.C. as well as 311 of Cr.P.C. The First Appellate Court also considered the same and given an opportunity and when the case is set down for the arguments, an application is filed under Section 45 of the Evidence Act. It is nothing but an abuse of process and the very conduct of the petitioner discloses that he is coming in the way of disposal of the case instead of arguing the case on merits. The First Appellate Court to substantiate the defense before Court given an opportunity and the appellant making an application one or the other application. Hence, I do not find any 11 error committed by the Court below and the impugned order of the trial Court is very clear that the petitioner is coming in the way of filing one or the other application and dragging the matter. The Court below also has given the reasons that the signatures of the cheque has not been disputed by the petitioner and only disputing with regard to the hand writings of other particulars and the Court also made an observation that Court can invoke Section 73 of Indian Evidence Act. No doubt, lower Court cannot act as an expert under Section 73 of the Evidence Act in comparing the hand writings but the Court can compare the same and also appreciate the answers elicited in the cross-examination of the witness. When such being the case, the very order impugned not suffers from any infirmity. The counsel appearing for the petitioner brought to the notice of this Court that the judgment of the Hon'ble Apex Court applicable to this case and there is no dispute with 12 regard to the principles laid down in the judgment with regard to giving an opportunity since the burden lies on the accused to rebut the evidence of the complainant under Section 139 of N.I.Act and the same is rebuttable presumption and it is not the case of the petitioner that an opportunity is not given to rebut the evidence and instead of an application is filed under Section 45 of Evidence Act.
10. Having considered the material on record and also the reasons assigned by the Court below, I do not find any error committed by the Court below in rejecting the application and the Court below taking into consideration of the grounds urged in the application, given the reasons and the same is not contrary to law and within the purview of the law, even invoking Section 73 of Evidence Act dismissed the application that the same can be compared and I do not find any merit in the application to set aside the order of the lower Court. 13 Having considering the submission of the counsel for respondent and also considering the material on record, it appears the petitioner is not assisting the Court below in disposal of the case and instead of making unnecessary applications before the Court below. Hence, the very petition has to be dismissed with costs.
11. In view of the discussions made above, I pass the following;
ORDER The petition is dismissed with costs of Rs.2,000/-. The payment of cost is condition precedent to proceed with the case before the lower Court. The cost is payable in favour of the complainant/respondent.
The Court below is also directed to dispose of the matter within two months from today.
Sd/-
JUDGE msr