Orissa High Court
Varun Passary & Another vs M/S. Maithan Ispat Ltd. ...... Opp. ... on 18 April, 2012
Author: I.Mahanty
Bench: Indrajit Mahanty
HIGH COURT OF ORISSA : CUTTACK
CRLMC NO.2180 OF 2009
In the matter of an application under section 482 of the Criminal
Procedure Code.
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Varun Passary & Another ...... Petitioners
-Versus-
M/s. Maithan Ispat Ltd. ...... Opp. Party
For Petitioner : M/s S. Ratho, M.K. Das &
Mahendra Kumar Das.
For Opp. Party : M/s R. Sahu-2, B.P.Mohapatra &
S. Pradhan.
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PRESENT:
THE HON'BLE MR. JUSTICE INDRAJIT MAHANTY.
Date of hearing: 14.03.2011 Date of Judgment: 18.04.2012
I. Mahanty, J.This application under Section-482 Cr.P.C. has been filed by the petitioner-Varun Passary and another, Director of M/s. Mani Vyapar (P) Ltd., Kolkatta, inter alia, seeking to challenge the judgment dated 02.05.2009 in Criminal Revision No.25 of 2008, whereby, the lower revisional court i.e. Additional Sessions Judge, Rourkela came to dismiss the revision and affirm the earlier order passed by the learned J.M.F.C., Rourkela in I.C.C. Case No.23 of 2007, who by order dated 2 23.10.2008 rejected a petition filed by the petitioner seeking for direction for sending the bounced cheques to a handwriting expert for examination of the writings.
2. Ms. S. Ratho, learned counsel appearing for the petitioners sought to contend that the respondent-petitioner No.1 had issued cheques as 'security' for receipt of advance from the complainant for supply of iron ore. Learned counsel for the petitioners asserted that the complainant had advanced a sum of Rs.75,00,000/-, whereas, the total amount payable for supply of 3600 M.Ts. of iron ores was Rs.99,69,300/-. It is contended that, since the balance amount was not paid by the complainant-purchaser, no supply of iron ore was effected. It is further averred that the complainant had advanced a sum of Rs.75,00,000/- to the respondent-petitioners against security of five blank cheques amounting to Rs.75,00,000/-.
Learned counsel for the petitioners further submitted that while petitioner No.1 admits his signature on the body of the cheque, it is asserted that apart from the signature, all other writings on the cheques have been made by the complainant for which purpose, the application with a prayer for sending the said cheques for examination by handwriting expert had been filed.
Learned counsel for the petitioner asserted that the cheques which had been given to the opposite party-complainant was by way of 3 security and had never been issued for the due discharge of any liability. In this connection reliance was placed on various judgments of the Hon'ble Supreme Court which are as follows: (i) Kalyani Baskar (MRs.) v. M.S. Sampoornam (MRs.), (2007) 2 Supreme Court Cases 258, (ii) T.Nagappa v. Y.R. Muralidhar, (2008) 5 Supreme Court Cases 633.
3. Mr. R. Sahu-2, learned counsel for the opposite party, on the other hand, contended that the claim made by the petitioners that the cheques had been issued by them as 'security', is a clear 'after thought' and not a fact borne out on record. He submitted that while the complainant had, in fact, advanced a sum of Rs.75,00,000/- to the respondent-petitioner for supply of iron ore, in terms of their letter dated 8.9.2006, the accused, having failed to effect delivery of the iron ore even though advanced had been paid, offered to return the said advance amount of Rs.75,00,000/-, to the complainant and accordingly, the respondent-petitioner issued five cheques, each for the amount of Rs.15,00,000/- towards discharge of his liability. These cheques were sought to be encashed and dishonoured which are the subject matter of the present proceeding under the N.I. Act.
Mr. Sahoo, learned counsel for the opposite party further stated that the plea of the petitioner claiming the cheques as 'security cheque' is clearly an 'after thought' and has been raised merely to 4 delay the proceeding and to frustrate the provision of law. In this respect reliance was placed by him on a judgment of the Hon'ble Supreme Court in the case of G. Someshwar Rao v. Samineni Nageshwar Rao & Anr., (2009) 44 OCR (SC) 195.
4. Having heard the learned counsel for respective parties as noted hereinabove, since the facts of the present case are not in dispute, it needs to be reiterated herein that the petitioner's application before the learned trial court praying for sending of the cheques for an expert opinion, in spite of the fact that, the petitioner No.1 had categorically admitted his signature on the body of the cheque. In this respect, reliance placed by the petitioner on a judgment of the Hon'ble Supreme Court in the case of T.Nagappa v. Y.R. Muralidhar (Supra) is wholly misplaced. In the said case prayer had been made by the accused therein seeking to refer the cheque in question for examination by the Director of Forensic Science Laboratory "for determining the age of his signature" contending that the respondent had obtained the signed cheque from him in the year, 1999 as security for a hand loan of Rs.50,000/- which the accused claimed to have paid back to the complainant and that the complainant instead of returning the said cheque had misused the same many years later by entering a huge amount in the cheque, which the accused did not owe to the appellant. In the background of 5 such fact, the Hon'ble Supreme Court came to hold that it was necessary to ascertain the age of the signature of the accused on the front page of the cheque as well as on the reverse. In other words, the Hon'ble Supreme Court in the said case referred the cheque for determination of the "age of signature" where the accused denies any liability would be justifiable.
The facts of the present case are clearly distinct. There is no suggestion even made by the accused in the present case similar to the allegation made in the aforementioned case. The facts of the present case being completely distinct, the said judgment would have no applicability to the facts that have arisen for consideration in the present case.
Further reliance was placed by the petitioners' counsel on a judgment of the Supreme Court in the case of Kalyani Baskar (MRs.) Vrs. M.S. Sampoornam (MRs.) (supra) which is also in my considered view misplaced. In the said judgment the accused therein had sought for sending the disputed cheque for the opinion of the handwriting expert, "to ascertain the genuineness of the signature" on it. On such a prayer being rejected challenge had been made before the Hon'ble Apex Court. The Hon'ble Apex Court concluded that a "fair trial" would include fair and proper opportunity to be allowed to an accused by law to prove his innocence or otherwise the denial of such right would 6 amount to a denial of the right to a fair trial. In the present case, the signature of accused is not in doubt nor has been questioned. Therefore, the facts situation that arose in the said judgment is distinct to the facts situation of the present case and in my considered view, the said judgment has no applicability to this case.
5. On the other hand, reliance was placed by the learned counsel appearing for the complainant (opposite party) on a judgment of Hon'ble Supreme Court in the case of G. Someshwar Rao v. Samineni Nageshwar Rao & Anr. (supra). In the said judgment, the Bench headed by Hon'ble Justice S.B. Sinha (as His Lordship the then was) concluded that, the ends of justice would be best sub-served if an opportunity was granted to the accused to examine an expert at his own cost. In the case at hand, I find the aforesaid judgment to have full applicability to the present case and dispose of the petition with a direction to the trial court to allow an opportunity to the accused- petitioner to examine an expert at his own cost and if he requisitions the services of an expert, the learned judge would grant him an opportunity to examine the disputed documents, submit a report and examine himself as a witness in the case preferably on the same date. Such a step as directed hereinabove must be taken by the petitioner herein within four weeks from the date of judgment. 7
6. With the aforesaid observations and directions, this CRLMC stands disposed of.
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I.Mahanty,J.
ORISSA HIGH COURT : CUTTACK 18th April, 2012/PKP