Madhya Pradesh High Court
Sohanlal Singhal vs Sunil Jain on 15 December, 2014
1 M.Cr.C.No.4388/2014
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE SUSHIL KUMAR GUPTA
MISCELLANEOUS CRIMINAL CASES.NO.4388/2014
Petitioners Sohanlal Singhal and another.
Versus
Respondent Sunil Jain.
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Shri Suresh Agarwal, Advocate for the petitioners.
Shri A.V. Bhardwaj, Advocate for the respondent.
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Whether approved for reporting :
ORDER
(15/12/2014) Per Justice Sushil Kumar Gupta,
1. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 [in short the "Code"] by the petitioners being aggrieved by the order dated 06.05.2014 passed by Judicial Magistrate First Class, Gwalior in Criminal Complaint No.5739/2013 whereby the application under Section 45 of Evidence Act, 1872 [for brevity Act 1872] sending the disputed cheque for examination by the handwriting expert was dismissed.
2. Brief facts of the case are that respondent filed a private complaint under Section 138 of Negotiable Instruments Act, 1881 [in short the Act 1881] wherein it was alleged that accused received Rs.5,00,000/- from the respondent/complainant and for paying the same 2 M.Cr.C.No.4388/2014 issued a cheque No.000097 of Allahabad Bank dated 11.03.2013 in favour of the complainant. It was further alleged that cheque was presented in the bank by the complainant and the same was dishonored with the endorsement opening balance insufficient, hence, issued a legal notice, thereafter, private complaint has been filed before the competent Court. During the pendency of the complaint, petitioners/accused filed an application under Section 45 of Act 1872 and the same was dismissed vide order dated 26.09.2013 on the ground that the accused can take this steps at the stage of defence. It is further submitted that evidence was produced by the respondent/complainant before the Court and the same was cross examined by the counsel of the petitioners and it was admitted by the complainant that he has not completed any formalities with regard to the transaction. Complainant closed evidence and Court recorded examination of the petitioner under Section 313 of the code and fixed the case for defence.
3. At the stage of defence, petitioners filed an application under Section 45 of Act 1872 for sending the disputed cheque for examination by the handwriting expert. Respondent did not file any reply and after hearing of the parties, learned Magistrate dismissed the same vide order dated 06.05.2014.
4. Learned counsel submitted that impugned order passed by learned Magistrate is wholly illegal, arbitrary hence deserves to be set aside. It is further submitted that learned Trial Court committed an error in not considering the order passed by this Court in the cases of Abhishek Vs. Ramesh reported in 2012 (II) MPWN 13, Mukesh Goyal Vs. Yasin Patel reported in 2009 Legal Eagle (M) 47 and Ram 3 M.Cr.C.No.4388/2014 Singh Damor Vs. Sunil Kumar reported in 2012 Legal Eagle (MP) 222 wherein it was held that the age of writing on the disputed cheque is material for determination of the right of the petitioners/accused and they are entitled to get the cheque examination by handwriting expert and ascertained the age of both writing. It is further submitted that learned Trial court committed an error while passing the impugned order ignored the observation made in the order dated 26.09.2013 in which the Court observed that the stage is not proper and application can be filed at the stage of defence, hence, now the application is dismissed which is clearly violation of the natural justice. On these ground learned counsel for the petitioners prays for set aside the order dated 06.05.2014 by allowing the application under Section 45 of Evidence Act.
5. On the other hand learned counsel for the respondent vehemently opposed the argument advanced by learned counsel for the petitioners contended that the learned Trial Court exercised his jurisdiction judiciously as the application filed by the petitioners with the intention to protract the trial. He also submitted that petitioners have admitted their signature on the cheque therefore, no need to send the disputed cheque for examination of handwriting expert. He also submitted that impugned order passed by learned Trial Court is well merited and no interference is called for.
6. Upon perusal of the order dated 26.09.2013, it appears that earlier application under Section 45 of Act 1872 was dismissed by learned Trial Court on the ground that matter is at initial stage and in view of the settled principal of the Apex Court, accused can plead and submit their defence at the stage of defence. At present the case is 4 M.Cr.C.No.4388/2014 listed for recording the plea of the petitioners. Thereafter, in compliance of the said order, petitioners have filed this application under Section 45 of Act 1872 after completion of the complainant evidence and recording his examination under Section 313 of the Code at the defence stage.
7. Learned counsel for the petitioners submitted that learned Trial Court committed an error in not considering the judgment of this Court in the case of Abhishek Vs. Ramesh reported in 2012 (II) MPWN 13, Mukesh Goyal Vs. Yasin Patel reported in 2009 Legal Eagle (M) 47 and Ram Singh Damor Vs. Sunil Kumar reported in 2012 Legal Eagle (MP) 222.
8. Learned counsel for the respondent submitted that when the disputed signature has been admitted by the petitioners/accused they better know the date of signing of cheque, therefore, no need of sending the disputed document for examination of hand writing expert he placed reliance on M.Cr.C.No.8139/2013 passed on 28.11.2013.
9. Learned Trial Court has also placed reliance on the judgment of the Apex Court Union of India Vs. Jyoti Prakash Mitter reported in AIR 1971 SC 1093 and judgment of Punjab and Harayan Yash Pal Vs. Kartar Singh reported in AIR (2003) 344.
10. To appreciate the reasonings recorded by the Trial Court in the impugned order Section 45 of Act 1872 reads as under :-
When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting (or finger impressions) the opinions upon that point of persons specially skilled in such foreign law, science or art, (or in questions as to identity of handwriting) (or finger impressions) are relevant facts. Such persons are called experts. Section 243 of the Code reads as under :-
1. The accused shall then be called upon to enter upon his defence and produce his evidence; and if 5 M.Cr.C.No.4388/2014 the accused puts in any written statement, the Magistrate shall file it with the record.
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. The Magistrate may, before summoning any witness on an application under sub-section (2), require that the reasonable incurred by the witness in attending for the purposes of the trial be deposited in Court.
Section 243 (2) is clear that a Magistrate holding an inquiry under the 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 a hand-writing 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 material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the hand-writing 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. It is essential 6 M.Cr.C.No.4388/2014 that rules of procedure designed to ensure justice should be scrupulously followed, and courts should be jealous in seeing that there is no breach of them.
11. So far as the decision of the Hon'ble Apex Court in the case of Union of India (supra) and Punjab and Harayana in Yashpal (supra) here it is pertinent to mention that in latest decision of Hon'ble Apex Court in T. Nagappa Vs. Muralidhar reported in 2008 AIR SCW 3349 wherein the same circumstances wherein the age of writing of the cheque as well as signature of the accused are in dispute, the Hon'ble Apex Court allowed the appeal and directed examination of the cheque by some handwriting expert so that the age of both the writings can be ascertained and held here as under :-
"The learned trial Judge as also the High Court rejected the contention of the appellant only having regard to the provisions of Section 20 of the Negotiable Instruments Act. The very fact that by reason thereof, only a prima facie right had been conferred upon the holder of the negotiable instrument and the same being subject to the conditions as noticed hereinbefore, we are of the opinion that the application filed by the appellant was bona fide.
The issue now almost stands concluded by a decision of this Court in Kalyani Baskar (Mrs.) Vs. M.S.Sampoornam (Mrs.), reported in (2007) 2 SCC 258- 2007(1) ANJ (SC) 308, wherein it was 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 a handwriting expert 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 material for rebutting that case, the Magistrate having 7 M.Cr.C.No.4388/2014 declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant 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 defense is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the Courts should be jealous in seeing that there is no breach of them." However, it is not necessary to have any expert opinion on the question other than the following :
"Whether the writings appearing in the said cheque on the front page is written on the same day and time the said cheque was signed as "T.Nagappa" on the front page as well as on the reverse, or in other words, whether the age of the writing on Ex.P/2 on the front page in the same as that of the signature "T.Nagappa" appearing on the front as well as on the reverse of the cheque Ex.P/ 2 ?"
12. On the basis of aforesaid law laid down by the Hon'ble Apex Court the facts of the present case also appears to be same wherein the petitioner/accused are taking defence that the cheque has not been filled by his handwriting and operative part of the cheque was filled by using different pens. Therefore, it would be beneficial evidence in favour of the petitioners/accused to ascertain the age of both the writing, signature of the petitioners as well as other remaining writing of the cheque and by rejecting the aforesaid application for examination by some hand writing expert petitioners/accused have deprived his valuable right for fair trial and right to rebut complainant's case.
13. Resultantly, in view of the above, the petition is allowed. The impugned order passed by the Trial court is set aside and it is directed that the Trial Court will call the handwriting expert for examination of the disputed cheque. After obtaining report and recording of the statement 8 M.Cr.C.No.4388/2014 of the handwriting expert the Trial court will proceed with the trial according to law. The costs of the hand writing expert will be borne by by the petitioners/accused.
14. With the aforesaid directions, this petition is disposed of.
(Sushil Kumar Gupta) Judge bj/-