Karnataka High Court
Mohammed Imran Ahmed vs J R Chandrashekhara on 18 June, 2014
1 Crl.RP 830/09
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF JUNE, 2014
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
CRIMINAL REVISION PETITION No.830 OF 2009
BETWEEN:
Mohammed Imran Ahmed,
S/o. Sardar,
Aged about 38 years,
R/at Gujarathi Baba Darga,
Hassan - 577 601. ... PETITIONER/S
[By Sri. G.S. Balagangadhar, Adv.]
AND:
J.R. Chandrashekhara,
S/o. Ramegowda,
Aged about 35 years,
R/at Sri Rama Kutira,
Hemavathinagar,
Hassan - 577 601. ... RESPONDENT/S
[By Sri. H.N.C. Kumare Gowda, Adv.- Absent]
***
This Crl.RP. is filed u/Section 397 Cr.P.C
praying to set aside the final Order and Judgment
dated: 17.07.2009 passed by the Prl. District and
Sessions Judge, Hassan in Crl.Appeal No.137/2007
2 Crl.RP 830/09
and consequently the final Order and Judgment
dated: 03.12.2007 passed by the Civil Judge
(Jr.Dn.) and J.M.F.C., Alur, in C.C. No.306/2004
and dismiss C.C. No.306/2004 on the file of Civil
Judge (Jr.Dn.) and J.M.F.C., Alur.
This Crl.RP. coming on for Hearing, this day
the Court made the following:
ORDER
This revision petition is directed against the Judgment and Orders of the learned Magistrate, convicting the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act [hereinafter referred to as "the N.I. Act" for short], directing him to pay a compensation of Rs.1,75,000-00 with a fine of Rs.5,000-00 and rigorous imprisonment for one year, in addition to the payment of fine, confirmed in Crl.A. No.137/2007 and also rejecting the applications filed by the petitioner under Section 293 Cr.P.C. r/w. Section 45 of the Evidence Act and under Sections 311 r/w. 391 Cr.P.C.
3 Crl.RP 830/09
2. The facts reveal that the respondent advanced a loan of Rs.85,000-00 and towards payment of the said dues, a cheque dated 18.05.2004 was issued by the petitioner. On presentation of the cheque, it came to be returned with an endorsement stating "the petitioner has no account". Thereafter, the respondent issued a notice to the petitioner. The petitioner issued a reply but, did not pay the amount. Hence, the respondent approached the trial Court with the complaint under Section 200 Cr.P.C. for the offence punishable under Section 138 of the N.I. Act.
During the trial, the respondent was examined as P.W.1 and in his evidence Exs.P1 to 9 were marked. The petitioner examined himself as D.W.1 and a witness D.W.2 and in their evidence, documents Exs.D1 to 42 were marked.
The trial Court after hearing the parties and on appreciation of the evidence on record, 4 Crl.RP 830/09 convicted the petitioner and ordered him to pay the fine amount as stated above and to undergo rigorous imprisonment for one year in default of payment of fine. The said Judgment and Order of conviction and sentence was challenged before the Principal Sessions Judge, Hassan, wherein the petitioner had also filed applications under the provisions of Sections 311 r/w. 391 Cr.P.C. and under Sections 293 Cr.P.C. r/w. Section 45 of the Evidence Act, seeking reference of the disputed signature on the cheque to the handwriting expert on the ground that he has not put his signature on the cheque. Learned Sessions Judge under the impugned Judgment and Order has dismissed the appeal and rejected the said applications. Aggrieved by the conviction and sentence, the present appeal is filed.
3. Heard learned counsel for the petitioner. Learned counsel for the respondent is absent all along.
5 Crl.RP 830/09
4. Learned counsel for the petitioner submits that the bank account was opened by the petitioner in the year 1998 and the petitioner never issued any cheque to the respondent and the signature on it is not of the petitioner. Therefore, submits that an opportunity ought to have been given by the Court below for seeking experts opinion on the disputed signature. He submits that though applications were filed before the Sessions Court under Section 293 Cr.P.C., r/w. Section 45 of the Evidence Act praying to refer the disputed cheque for expert's opinion and under Sections 311 r/w. 391 Cr.P.C., praying to issue summons to the Advocate for examination on behalf of the accused. But, the applications were rejected without assigning any reasons and the order of the trial Court was affirmed.
5. As could be seen from the cross-
examination of the complainant-P.W.1, the petitioner herein [accused before the trial Court] 6 Crl.RP 830/09 has disputed the signature on Ex.P1-cheque. So, it is his defence evidence that the cheque was stolen and the signature on the cheque does not belong to him. The respondent examined himself and even in the cross-examination, there was a suggestion that the signature on the cheque is not of the drawer. The petitioner was examined as D.W.1 and even in the evidence as well he stated that the signature on the cheque is forged and it does not belong to him. To substantiate his defence, he has filed an application even before the trial Court requesting to refer the disputed signature for opinion of the hand-writing expert. In fact, the trial Court has rejected the said application. A revision against the interim order was also presented by the petitioner. The said revision also came to be dismissed. Ultimately, the trial Court held the signature of the petitioner is proved and ordered him to undergo imprisonment and to pay the fine.
7 Crl.RP 830/09
6. Even in the appeal, it was the consistent version of the petitioner that the signature on the cheque is forged and therefore, he along with the appeal filed applications under Sections 311 r/w. 391 Cr.P.C. and Section 293 Cr.P.C. r/w. Section 45 of the Evidence Act to refer the signature for the opinion of the expert. The trial Court though has not assigned any reasons to reject the applications and it affirmed the Order of conviction and in the operative portion, made a mention that the applications stand rejected.
7. When the defence is taken by the accused, it is necessary for the Court to give an opportunity to place on record whatever evidence that is necessary in his defence. The complainant alone who had entered the witness box and the petitioner had made an effort to examine D.W.2-an official of the bank, with whom he had an account. The official is examined as D.W.2, stated in his evidence that the records were destroyed and 8 Crl.RP 830/09 therefore, he cannot give opinion with regard to the signature. It is no-doubt true that the cheques presented were not returned on the ground that the signatures are not similar. But, it is his case that the signature does not belong to him and he wants to prove this defence by placing the evidence on record as the specimen signature maintained by the bank was not available as the records were destroyed. Therefore, he sought to refer the disputed signature for the opinion of the hand-writing expert. Though the applications filed in the trial Court were dismissed and it was confirmed in the revision, the first appellate Court has still the power to take into consideration the defence put-forth by a party and may offer an opportunity to place on record the relevant evidence if it is found just and necessary. Though the first appellate Court rejected the application, the perusal of the Judgment does not reveal any reasons for rejection 9 Crl.RP 830/09 of the applications. Merely because that the petitioner had two names and that he put the signature on the disputed cheque, which was also his name, does not preclude the petitioner to place on record other evidence to support his defence. Whenever an accused is prosecuted, he must have liberty to place on record the best evidence to appreciate his defence, particularly when the records maintained by the bank relating to the specimen signature were destroyed and D.W.2 was not able to confirm the signature, I think it was just and necessary for the first appellate Court to consider the applications and pass appropriate orders by assigning reasons. But, the first appellate Court though affirmed the Order of conviction holding that the signature on the cheque is that of the petitioner, did not consider the request of the petitioner for reference of the disputed signature for the opinion of the hand- writing expert. This approach of the first 10 Crl.RP 830/09 appellate Court is erroneous. I am of the opinion that the first appellate Court has to take decision on the applications filed by the petitioner under Sections 311 r/w. 391 Cr.P.C. and Section 291 Cr.P.C. r/w. Section 45 of the Evidence Act.
In the aforesaid circumstances, the revision petition is allowed. The Order of the learned Sessions Judge in Criminal Appeal No.137/2007, dated 17.07.2009 is set aside. The matter is remitted back to the first appellate Court to consider the applications of the petitioner filed under Sections 293 Cr.P.C. r/w. Section 45 of the Evidence Act and under Sections 311 r/w. 391 Cr.P.C. on merits along with the appeal and dispose of them in accordance with law, uninfluenced by any of the observations made above.
11 Crl.RP 830/09
To avoid delay, the petitioner is directed to appear before the first appellate Court on 14.07.2014. The amount in deposit be transmitted to the District Court, Hassan, and the said Court in turn directed to keep the amount in deposit in the criminal appeal and pass appropriate order relating to payment, subject to the decision in the appeal.
Sd/-
JUDGE.
Ksm*