Madras High Court
A.Vijayarani vs Karuppanan on 15 December, 2015
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15.12.2015
CORAM
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
Crl.R.C.(MD)Nos.328 of 2015 and 329 of 2015
and
M.P.(MD).Nos.1 and 1 of 2015
A.Vijayarani
... Petitioner/Accused in both
Crl.R.Cs.
Vs.
Karuppanan ... Respondent/Complainant in both
Crl.R.Cs.
Prayer
Criminal Revision Petitions are filed under Sections 397 r/w. 401 of
Cr.P.C., to call for the records in Crl.M.P.Nos.8882 and 8885 of 2014 in
S.T.C.Nos.362 and 402 of 2012 on the file of the Learned Judicial Magistrate,
Thuraiyur, Trichy District and set aside the same by allowing these Revision
Petitions.
!For Petitioner : Mr.N.Ananthapadmanabhan
^For Respondent : Mr.N.Shankar Ganesh
:COMMON ORDER
The Civil Revision Petitioner has preferred the instant two Criminal Revision Petitions before this Court, being aggrieved against the common order dated 25.02.2015 in Cr.M.P.Nos.8882 and 8885 of 2014 passed by the Learned Judicial Magistrate, Thuraiyur, Trichy District.
2. The Learned Judicial Magistrate, Thuraiyur, while passing the impugned common order in Cr.M.P.Nos.8882 and 8885 of 2014 (filed by the Revision Petitioner as Petitioner under Section 45 of the Indian Evidence Act, 1872), at paragraph-6, had inter alia observed that ?... on behalf of the Accused in S.T.C.No.402 of 2012, the witnesses mentioned in the witness list (submitted on the side of the Accused) viz., Dhandabani @ Senthil, Namakkal IDBI Bank Manager for whom summons was sought to be issued and on behalf of the Accused (Revision Petitioner), batta was not paid and under these circumstances, the evidence on the side of the Accused (Revision Petitioner) was closed on 11.06.2014 and at that point of time, Cr.M.P.Nos.5101 and 5102 of 2014 were filed to recall P.W.1 were dismissed by this Court on 08.08.2014, with an observation that there were no grounds to allow the same and subsequently, when the case was posted for hearing the arguments, at that point of time, the Accused has filed the present petition etc., and ultimately, opined that at the initial stage itself that, in the case cheques, the plea that they were not his signatures and they were created, such kind of stand was not taken and when the case was posted for arguments, at that point of time, the filing of the two petitions was meant with a view to delay the proceeding and resultantly dismissed the petitions.
3. Being dissatisfied with the common order dated 25.02.2015 in Cr.M.P.Nos.8882 and 8885 of 2014, the Revision Petitioner/Accused has preferred the instant Criminal Revision Petitions before this Court, exercising the procedural facility enunciated under Criminal Procedure Code, contending that the common order dated 25.02.2015 in Cr.M.P.Nos.8882 and 8885 of 2014 is against Law and also in negation of the material facts available on record and as such, the same is liable to be set aside in the interest of justice.
4. The Learned Counsel for the Revision Petitioner (in both the Revisions) urges before this Court that the trial Court had committed an error in making an observation that 'Defence of Forgery' was not taken at the earliest point of time, as the Revision Petitioner had not issued any reply to the statutory notice issued by the Respondent/Complainant, after the dishonour of cheque and further that, the Petitioner was estopped from taking such a defence at a later stage.
5. The stand of the Revision Petitioner (in both the Revisions) is that the signature in the cheque dated 09.10.2011 for Rs.3 lakhs and the signature in the cheque dated 17.11.2011 for Rs.1,67,100/- do not belong to her and that they were all created by the Respondent/Complainant and therefore, the signatures found in the two cheques must be sent for comparison with her admitted signature in registered sale deed dated 22.12.2010, to an handwriting expert. However, the trial Court has negatived her request in this regard. Further, the plea of the Revision Petitioner is that she does not know the complainant and his occupation.
6. The real grievance of the Revision Petitioner/Accused is that she is entitled in law to take any type of defence till the conclusion of the trial of a case and in this regard, the valuable right of the Revision Petitioner/Accused cannot be taken away abruptly because of the simple reason that the 'Defence of Forgery' was not taken at the earliest point of time.
7. Yet another stand of the Revision Petitioner is that the absence of reply notice by the Petitioner/Accused cannot ipso facto lead to a presumption of guilt on the part of the Petitioner/Accused and that the presumption under Section 139 of the Negotiable Instrument Act, 1881 is a rebuttable one. Viewed in that perspective, the Revision Petitioner/Accused cannot be precluded from taking steps in Law to prove her innocence and preventing the same will lead to serious miscarriage of justice.
8. The Learned Counsel for the Petitioner/Accused takes a primordial legal plea that 'the principles of natural justice' require the trial Court is to provide an opportunity to the Revision Petitioner/Accused to prove her innocence by comparing the disputed signature with her admitted signature.
9. To lend support to the contention that the Revision Petitioner/Accused ought to have been provided with an opportunity by the trial Court in allowing the Cr.M.P.Nos.8882 and 8885 of 2014, the Learned Counsel for the Petitioner/ Accused seeks in aid of the decision of the Honouarble Supreme Court (G.Someshwar Rao vs. Samineni Nageshwar Rao and another) reported in 2009 (14) SCC 677 at special pages 678 and 679 in paragraphs 8 and 9, it is observed and held as follows:
8. Mr.C.Mukund, learned Counsel appearing on behalf of the appellant would submit that having regard to the fact that the accused is entitled to a fair trial, his application for examination by an expert within the meaning of Section 45 of the Indian Evidence Act, 1872 for the purpose of establishing that a document, whereupon the prosecution rests its case, being not genuine, the court was under a constitutional obligation to ensure that he is permitted to take all defences.
Strong reliance in this behalf has been placed on judgments of this Court in the case of Kalyani Baskar (Mrs.) v. M.S.Sampoornam (Mrs.), (2007) 2 SCC 258 : (2007) 2 SCC 258 and in the case of T.Nagappa v. Y.R.Muralidhar, AIR 2008 SC 2010 : (2008) 5 SCC 633.
We may place on record that in spite of service no one has entered appearance on behalf of respondent No.1.
9. Indisputably, an accused is entitled to a Fair trial which is a part of his fundamental right as guaranteed under Article 21 of the Constitution of India. The concept, however, cannot be put to a straight jacket formula. A court of law will have to consider each application filed by an accused praying for comparison of his signature on a disputed document with his admitted signature on its own merits. No hard and fast rule can be laid down therefor.
10. The Learned Counsel for the Petitioner cites the decision of Honourable Supreme Court (T.Nagappa vs. Y.R.Muralidhar) reported in AIR 2008 (SC) 2010, wherein, it is among other things observed that, 'Even in case of availability of legal presumption, an opportunity must be granted to an accused for adducing evidence in rebuttal thereof and rejection of application having regard to only Section 20 of the Negotiable Instruments Act was not proper'.
11. He also invites the attention of this Court to the decision of Honourable Supreme Court (Mrs. Kalyani Baskar vs. Mrs.M.S.Sampornam) reported in 2006 (13) Scale 459 at special page-451 in paragraph-10, whereby and whereunder it is observed and held as follows:
?10. 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 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. We have not been able to appreciate the view of the learned Judge of the High Court that the petitioner has filed application under Section 243 Cr.P.C. without naming any person as witness or anything to be summoned, which are to be sent for handwriting expert for examination. As noticed above, Section 243(2) Cr.P.C. refers to a stage when the prosecution closes its evidence after examining the witnesses and the accused has entered upon his defence. The appellant in this case requests for sending the cheque, in question, for the opinion of the hand-writing expert after the respondent has closed her evidence, the Magistrate should have granted such a request unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. In the circumstances, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable.?
12. Conversely, it is the contention of the Learned Counsel for the Respondent/Complainant that the common order dated 25.02.2015 in Cr.M.P.Nos.8882 and 8885 of 2014 passed by the Learned Judicial Magistrate, Thuraiyur in dismissing the petitions assigning reasons thereto is a legally valid one, because of the reason that the Revision Petitioner/Accused had not taken diligent steps in not paying the witness batta to the concerned witnesses, when the application for issuing summons to the witnesses viz., (1) Baskar, (2) Dhandapani @ Senthil (3) The Manager, Namakka I.D.B.I Branch Manager was allowed by the trial Court and when witnesses batta was not paid under evidence of Petitioner/Accused was closed on 11.06.2014 and further, when the trial Court had posted the main S.T.C.No.402 of 2012 for hearing the arguments, at that time, the Revision Petitioner had filed Cr.M.P.Nos.5101 and 5102 of 2014 (i) (to reopen the case and to recall P.W.1) and the said petitions were dismissed by the trial Court on 08.08.2014 with an observation that there were no grounds to allow the same, when the main case was posted for arguments, only at that point of time, the Revision Petitioner/Accused had filed Cr.M.P.Nos.8882 and 8885 of 2014 (under Section 45 of the Indian Evidence Act, 1872) whereby and whereunder, a request was made to send the alleged disputed cheques dated 18.11.2011 and 25.01.2012 and together with the registered document dated 21.12.2010 which contain the admitted signature of the Petitioner/Accused for obtaining an expert opinion and to hand over the same to the Handwriting Expert, Government Forensic Department, Madurai to compare the signature found in the alleged cheque along with the admitted signature of the Petitioner/Accused and to obtain the expert opinion in this regard and the said petitions were finally dismissed by the trial Court with an observation that only with a view to procrastinate the case enquiry, they were filed and the same cannot be found fault with.
13. The Learned Counsel for the Respondent/Complainant takes a plea that no suggestion was put to P.W.1/Complainant about the aspect of 'Defence of Forgery' and also that the Revision petitioner/Accused had not preferred any complaint before the police that his signature in the two cheques in question was forged and also when the Respondent/Complainant issued Ex.P6 - Legal notice, for which also the Revision Petitioner/Accused had not issued any reply and the non-issuance of reply notice by the Revision Petitioner is certainly an adverse circumstance against the Revision Petitioner.
14. Furthermore, it is the contention of the Learned Counsel for the Respondent/Complainant that the Petitioner/Accused had not paid the necessary batta and that the closure of evidence by the trial Court in the main case on 11.06.2014 and posting the case for arguments does not suffer from any serious, material irregularity, patent illegality in the eye of Law.
15. The Learned Counsel for the Respondent/Complainant to substantiate his contention that the presumption mentioned in Section 139 of the Negotiable Instruments Act includes a presumption that there exists a legally enforceable debt or liability relies on the decision of Honourable Supreme Court (Rangappa vs. Sri Mohan) reported in 2010 (11) SCC 441 at special Page 442, wherein it is observed as follows:
?The presumption mandated by Section 139 includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, herein, there can be no doubt that there is an initial presumption which favours the respondent complainant.?
16. It is to be borne in mind that failure to give effect to the letter and spirit of Section 243 of Cr.P.C., would be an illegality besides vitiating the hole proceedings. If an accused desires to obtain an expert's opinion in defence he can make it available and may, if necessary examine the expert. For the purpose he seeks its aid. Ultimately, it is for the trial Court to say whether it should sailed or not to sail with an expert opinion. The right conferred under Section 243(2) of Cr.P.C., is a valuable right for a fair trial, not entirely in the realm of investigation and it is for the trial Court to come to the conclusion that the necessary petition filed is a vexatious one or a frivolous one with a view to defeat the ends of justice.
17. One cannot brush aside a very vital fact that a 'Fair Trial' includes fair and adequate opportunities allowed by Law to establish ones innocence. It is to be remembered that adducing necessary oral or documentary evidence in support of a defence is a valuable right and if the same is denied, then it amounts to 'denial of fair trial', as opined by this Court. That apart, Section 243 authorises the defence to project an application for summoning the witnesses and imposes a duty upon the Court to summon such witnesses. A Court of Law cannot avoid /shirk the duty unless it considers that such petition ought to be refused for any of the reasons mentioned in the sub-section, in the considered opinion of this Court. Also that a Court of Law is not to refuse to summon a defence witness on hyper-technicalities on the basis that a person/accused had not filed the petition for summoning the witnesses before the production of defence evidence or the expenses of the witnesses was not deposited.
18. It cannot be gainsaid that what must be the nature of evidence to be adduced by a person/accused should be left the discretion of a party/accused and the same should not be left within the ambit of a Court. Also, it cannot be frightened that the right of an accused to lead evidence in his defence is not absolute. Notwithstanding the presumption that can be raised under Section 118 (a) or 139 of Negotiable Instruments Act, 1881, an opportunity of rebuttal must be granted to an accused for adducing evidence to discharge it.
19. On a careful consideration of respective contentions and in the upshot of detailed qualitative and quantitative discussions as mentioned supra, this Court taking note of the peculiar facts and circumstances of the present case and also this Court bearing in mind a prime fact that a Court of Law is to consider an application filed by the Petitioner/Accused praying for comparison of a signature on a disputed document with her admitted signature on its own merits and if an opportunity is granted to the Petitioner/Accused to substantiate her case, then no prejudice would be caused, this Court comes to an irresistible and inevitable conclusion that the view taken by the trial Court in the common order dated 25.02.2015 that the Petitioner/Accused had filed Crl.M.P.Nos.8882 and 8885 of 2014 only with a view to protract the proceedings of the main case etc., are not legally tenable in the eye of Law.
20. As such, this Court is left with no option, but to interfere with the said common order of the trial Court dated 25.02.2015 passed in Cr.M.P.Nos.8882 and 8885 of 2014. Consequently, the Criminal Revision Petitions succeed.
21. In the result, the Criminal Revision Petitions are allowed and the common order dated 25.02.2015 passed by the learned Judicial Magistrate, Thuraiyur, Trichy in Cr.M.P.Nos.8882 and 8885 of 2014 is hereby set aside by this Court for the reasons assigned in the present Criminal Revision Petitions. The Learned Judicial Magistrate, Thuraiyur, Trichy is directed to take on his file the Cr.M.P.Nos.8882 and 8885 of 2014 and to pass a reasoned, speaking order afresh in a diligent and dispassionate manner, of course after providing due opportunities to the respective parties. The fresh orders in Cr.M.P.Nos.8882 and 8885 of 2014 is to be passed by the Learned Judicial Magistrate, Thuraiyur, Trichy within a period of four weeks from the date of receipt of a copy of this order. Liberty is granted to the respective parties to raise all factual and legal pleas before the trial Court at the time of disposal of Cr.M.P.Nos.8882 and 8885 of 2014 and the parties are directed to avail the opportunity without fail.
22. In view of the fact that the date of cheque transactions is 17.11.2011 and 25.01.2012 and by taking note of yet another fact nearly four years have elapsed from the date of transactions referred to supra, this Court, in any event, directs the Learned Judicial Magistrate, Thuraiyur, Trichy to dispose of the main cases i.e., S.T.C.No.362 of 2012 and S.T.C.No.402 of 2012 within a period of three months from the date of receipt of a copy of this order. Within three months time granted by this Court, the trial Court shall earnestly endevaour to complete all formalities in regard to the decision to be arrived at by it in Cr.M.P.Nos.8882 and 8885 of 2014 (filed under Section 45 of the Indian Evidence Act, 1872). Connected Miscellaneous Petitions are closed.
To The Judicial Magistrate, Thuraiyur, Trichy District. .