Madras High Court
M.Ramadass Rao vs V.Sampath Raghavan on 19 October, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19 / 10 /2012 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN Crl.R.C.No.1458 of 2011 & M.P.No.1 of 2011 M.Ramadass Rao .. Petitioner Vs. V.Sampath Raghavan .. Respondent PRAYER : Criminal Revision is filed under Sections 397 and 401 of Cr.P.C., as against the order in M.P.No.641 of 2011 in C.C.No.109 of 2009, dated 14.09.2011 on the file of Judicial Magistrate, Sholingur. For Petitioner : Mr.V.Raghavachari For Respondent : Mr.D.Balachandran ******* O R D E R
The revision petitioner / petitioner / accused has preferred the present revision in Crl.R.C.No.1458 of 2011 against the order made in M.P.No.641 of 2011 in C.C.No.109 of 2009, on the file of Judicial Magistrate, Sholingur, dated 14.09.2011.
2. The respondent / complainant's case is as follows:-
The complainant is a practicing advocate and a notary public and is well acquainted with the accused for more than a decade. The accused borrowed a sum of Rs.4,00,000/- from the complainant on 01.01.2008 for the business needs of his son, assuring the complainant that he would repay the said sum within six months. On demand made by the complainant, the accused had issued a cheque dated 05.10.2008 (cheque bearing No.016405) drawn on Vaniyambadi Town Co-operative Bank Limited, Vaniyambadi, for a sum of Rs.4,00,000/- to and in favour of the complainant. When the complainant presented the said cheque for encashment with his bankers, viz., Catholic Syrian Bank, Vaniyambadi on 10.11.2008, it was returned unpaid on 11.11.2008 within an endorsement of "funds insufficient" in the account of the accused. The complainant sent a lawyer's notice to the accused on 17.11.2008 and also through certificate of posting on 21.11.2008, which was received by the accused on 27.11.2008. The accused sent a reply notice dated 07.12.2008 making false allegations. Hence, the complainant had filed a complaint against the accused for an offence under Section 138 of Negotiable Instruments Act before the Judicial Magistrate, Sholingur.
3. Subsequently, the case was taken on file of the Judicial Magistrate, Sholingur as C.C.No.109 of 2009. During the case proceedings, the accused had filed a petition in C.M.P.No.641 of 2011 in C.C.No.109 of 2009 under Section 45 of Evidence Act, along with an affidavit stating that the amount of Rs.1,00,000/- mentioned in the box column had been altered to Rs.4,00,000/- by changing the number "1" into the number "4". It was also submitted that the date and amount in words viz., four lakhs has been written in a different ink to that of the ink used in the signature and in the amount in numbers of Rs.1,00,000/- written by the accused. It was submitted that the complainant had fraudulently altered the amount in the cheque and foisted a false case. Hence, it was prayed to the Court to send the cheque (Ex.P1) to an expert to determine (a) whether the ink used in the filling up of the amount in numbers of Rs.1,00,000/- and the signature of the accused are similar or different to the ink used in filling the date and complainant's name and the amount in words of "Four Lakhs" (b) whether the amount of Rs.1,00,000/- filled in numbers in the cheque has been altered to Rs.4,00,000/- by correcting the No."1" into the number "4"? (c) Whether the writings found in the cheque have all been written on the same day or whether the signature of the accused and the amount filled as Rs.1,00,000/- in numbers has been written approximately 10 years ago?
4. The respondent / complainant in his counter has stated that the petitioner/ accused had earlier averred that a blank cheque signed by him had been taken away by the complainant and that subsequently the accused has averred that the cheque in question was incorporated with a sum of Rs.1,00,000/-. It was submitted that the accused had not taken any steps to send the cheque in question for the expert opinion even though the complaint was lodged on 07.01.2008. It was submitted that the C.M.P.No.2891 of 2009 was allowed by the Principal Sessions Judge, Vellore, on the ground that the complainant conceded for the transfer. Even after transferring the said case to this Court, vide order dated 10.09.2009, the accused failed to avail the opportunity and did not cross-examine the complainant. Thereafter, the accused had filed C.M.P.No.54 of 2009 and after due enquiry, the petition was also allowed on 01.02.2010 directing the accused to pay a sum of Rs.500/- to the complainant. Deliberately, the accused failed to make the said payment, the Court was pleased to dismiss the same recall petition and against the said order, the accused had preferred Cr.R.P.No.11 of 2010 before the Principal District Judge, Vellore and dragged on the proceedings. Finally, the District Judge dismissed the said criminal revision petition on 30.11.2010. Against the said order, the accused filed criminal revision petition before the High Court, Chennai in Crl.O.P.No.3346 of 2011. This Court allowed the petition and even after many hearings, the accused failed to make arrangements to cross-examine the complainant. Finally, on 09.05.2011, the complainant was cross-examined in detail and even in the said cross-examination or in the earlier proceedings also, the accused had not averred about the alleged alteration in the cheque in question. It was submitted that the intention of the accused is only to drag on the proceedings. It was submitted that there was no possibility to find out the age of the ink as science had not developed to that extent and this position is well settled through various judgments of the Hon'ble High Court and Supreme Court. Hence, it was prayed to dismiss the petition.
5. When the matter was taken up for final hearing on 14.09.2011, the learned Judicial Magistrate, after perusal of the records and the arguments advanced on both sides observed that the petitioner had raised the new issue about difference in inks used in the various columns of the cheque and that this issue has not been raised in the reply notice or during initial questioning, when he was examined under Section 313(1)(b) of Cr.P.C., on 25.05.2010. The learned Magistrate observed that the petitioner has raised the new issue after a period of 16 months and has come up with the present petition seeking for an order to send the cheque for expert opinion. The learned Magistrate opined that the contentions of the accused, in his petitions that there is alteration in the cheque by changing one lakh to four lakh, had not been made either in his reply statement or in the examination under Section 313(1)(b) of Cr.P.C. Hence, the learned Magistrate opined that the aforesaid conduct of the petitioner / accused coupled with the delay caused in various stages clearly shows that the object of the petition is not a bona fide one and opined that the petitioner is using dilatory tactics to drag on the proceedings. Hence, the learned Magistrate on observing that the petitioner had admitted his signature in the cheque held that the petition does not have any merits and dismissed the petition.
6. Aggrieved by the dismissal of his petition, the petitioner / accused has preferred the present revision.
7. The learned counsel for the revision petitioner has contended that the Court below ought to have seen that the petitioner had clearly stated even in the reply notice that he had not issued the cheque in favour of the respondent herein and that the document perse is concocted and that it is apparent from a bare perusal of document. It was pointed out that the numeral in cheque has been altered from "1" to "4" and as such, the numerical amount has been altered from Rs.1,00,000/- to Rs.4,00,000/-. It was pointed out that the ink used in the writings in the cheque are of different colours. It was contended that the Court below ought to have seen that it is the duty of the Court to permit the accused to lead evidence. The evidence cannot be shut out at the inception. Seeking to subject the document to scrutiny through an expert is an inherent right as the accused has to prove his innocence. It was contended that the reasoning given by the Court to dismiss the petition was illegal. It was contended that the petitioner had not engaged in any dilatory tactics and it was pointed out that merely because the petition had been filed after the examination of the prosecution witnesses, it would not make the petition less meritorious.
8. The learned counsel for the complainant submitted that the accused had received legal notice from the complainant, before filing of the complaint. At that time, the accused had not raised any objections regarding the amount mentioned in the cheque. Now, the case is in a partly heard stage. Under the circumstances, the supplementary application had been filed by the accused under Section 45 of the Evidence Act in order to prolong the case. The learned counsel further submitted that the learned Magistrate has assigned the reason stating that the accused had filed the petition for expert opinion after lapse of 16 months. This clearly proves that the intention of the accused is to create multiplicity of proceedings.
9. On verifying the facts and circumstances of the case and on arguments advanced by the learned counsel for the revision petitioner as well as the learned counsel for the respondent and on perusing the impugned order of the learned Magistrate, this Court does not find any discrepancy in the said order and holds that the revision has to be dismissed. Accordingly, the same is dismissed.
10. In the result, the revision is dismissed. Consequently, the order passed in M.P.No.641 of 2011 in C.C.No.109 of 2009, on the file of Judicial Magistrate, Sholingur, dated 14.09.2011 is confirmed. Consequently, connected miscellaneous petition is closed.
r n s To The Judicial Magistrate, Sholingur