Karnataka High Court
Mr J F Castelino S/O B M Castelino vs Mr Mark D'Paul S/O Late Jerome Paul on 25 February, 2013
1 Crl.A 1234/07 C/w
Crl.As 1235 & 1314/07
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF FEBRUARY, 2013
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL No.1234 OF 2007
C/w.
CRIMINAL APPEAL No.1235 OF 2007
AND
CRIMINAL APPEAL No.1314 OF 2007
In Crl.As. 1234 & 1235/07:
BETWEEN:
J.F. Castelino,
S/o. B.M. Castelino,
Aged: 56 years,
Roman Catholic,
R/at.'Carmel Villah',
Kulshekar,
Mangalore City. ... APPELLANT/S
[By Sri. P.P. Hegde, Adv.]
In Crl.A. 1314/07:
BETWEEN:
Eric Robert Rego,
S/o. Alexander Rego,
Aged 55 years,
Roman Catholic,
2 Crl.A 1234/07 C/w
Crl.As 1235 & 1314/07
R/o. Niddel House,
Kulshekar Post,
Mangalore. ... APPELLANT/S
[By Sri. P.P. Hegde, Adv.]
AND:
Mark D'Paul,
S/o. late Jerome Paul,
Aged:62 years,
Roman Catholic,
R/at Paldane House,
Nermarga Post,
Mangalore Taluk. ... RESPONDENT/S
[Common in all appeals]
[By Sri. S.G. Bhagwan, Adv.]
***
Crl.As. 1234 & 1235/2007 are filed u/Section
378(4) Cr.P.C. praying to set aside the Judgment &
Order of acquittal dt.21.6.2007 passed by the III
Addl. Dist. & S.J., D.K., Mangalore, in Crl.A.
No.377/2004 & 378/2004 respectively - acquitting
the respondent/accused for the offence punishable
under Section 138 of N.I. Act.
Crl.A. 1314/2007 is filed u/Section 378(4)
Cr.P.C praying to set aside the Judgment
dt.21.6.2007 passed by the Addl. S.J. D.K.,
Mangalore in Crl.A. No.380/2004, and consequently
confirm the Judgment of conviction and Order of
sentence dt.29.10.2004 passed by the JMFC, II
Court, Mangalore in C.C. No.4173/1998 punishable
under Section 138 of N.I. Act.
3 Crl.A 1234/07 C/w
Crl.As 1235 & 1314/07
These Crl.As. coming on for Final Hearing,
this day the Court delivered the following:
JUDGMENT
The appellants have challenged the Judgment and Order acquitting the respondent for the charge under Section 138 of the Negotiable Instruments Act [hereinafter referred to as the "the Act" for short] in Crl.A. Nos.377/2004 and 378/2004 and Crl.A. No.380/04 by setting aside the conviction and sentence ordered by the learned Magistrate, Mangalore, in C.C. Nos.15155/1997 and 15156/1997 and C.C. No.4173/1998.
2. The facts relevant for the purpose of these appeals are as under:
As there are common questions of law and facts in all the 3 appeals, they are taken together for consideration.
4 Crl.A 1234/07 C/w Crl.As 1235 & 1314/07 In the former two appeals i.e., Crl.A. No.377/2004 and Crl.A. No.378/2004 arising out of C.C. Nos.15155 and 15156/1997 respectively, the appellant/accused-Mark D'Paul and the respondent/complainant-J.F.Castelino are the same persons whereas in the latter appeal i.e., Crl.A. No.380/2004 arising out of C.C. No.4173/1998, the appellant/accused is Mark D'Paul and the respondent/complainant is Eric Robert Rego. The respondent/accused is common in all these 3 matters.
In the former two cases, the complainant J.F.Castelino alleges that the respondent/accused- Mark D'Paul was in financial difficulty and he requested him to grant a loan from time to time. The complainant advanced a loan to the accused on different occasions and towards the part payment of the loan availed, the accused issued a cheque bearing No.975677 dated 06.03.1997 for 5 Crl.A 1234/07 C/w Crl.As 1235 & 1314/07 Rs.1,00,000-00, drawn on State Bank of India, whereas in the other case, the accused issued a cheque bearing No.654035, dated 10.03.1997 for a sum of Rs.12,50,000-00 drawn on Corporation Bank. These cheques were presented by the complainant for encashment, they returned with endorsements "insufficient funds". The complainant issued notices to the respondent and it was replied by him. As the respondent did not pay the loan due, the complainant approached the trial Court and submitted two complaints in C.C. No.15155 and C.C. No.15156/1997.
During the trial, in C.C. No.15155/1997 and C.C. No.15156/1997, the complainant and a witness were examined as P.Ws.1 and 2 respectfully and in their evidence, documents Exs.P1 to 40 were marked. After recording the statement of the accused under Section 313 Cr.P.C., the accused was examined as D.W.2 and two witnesses as D.Ws.1 and 6 Crl.A 1234/07 C/w Crl.As 1235 & 1314/07 3 and in their evidence documents Exs.D1 to 16 were marked.
In C.C. No.4173/1998, the complainant examined himself as P.W.1 and two witnesses P.Ws.2 and 3 and in their evidence documents Exs.P1 to 12 were marked. After recording the statement of the accused, no defence evidence was led, but documents Exs.D1 to 4 were marked in the cross- examination of the witnesses for the complainant.
The trial Court after hearing the counsel for the parties and on appreciation of the material on record, convicted the respondent/accused for the charge under Section 138 of the Act and ordered the accused to undergo simple imprisonment for 2 months and to pay the compensation twice the cheque amount. Aggrieved by the conviction and sentence in these matters, the accused approached the Sessions Judge in Crl.A. Nos.377/2004, 378/2004 and 380/2004 respectively.
7 Crl.A 1234/07 C/w Crl.As 1235 & 1314/07 On hearing the parties and on appreciation of the material, the first appellate Court has allowed the appeals under the Judgment and Order impugned and set aside the conviction and sentence and dismissed the complaint filed by the appellants herein. Aggrieved by the Judgment and Order of acquittal in all the three appeals, the complainants are before this court in these appeals.
3. I have heard learned counsel for both the parties.
4. The point that arises for my consideration is;
Whether the appellants have made out any grounds to warrant interference in the Judgment and Orders acquitting the respondent for the charge under Section 138 of the Act?
8 Crl.A 1234/07 C/w Crl.As 1235 & 1314/07
5. It is the submission of learned counsel for the appellants that the respondent has admitted his liability and he has executed numerous documents, which have been produced before the trial Court and the signatures on the cheques have been proved on the basis of the admission of the respondent and his signatures on the other documents and therefore, it is his contention that the first appellate Court committed an error in allowing the appeals and set aside the conviction. It is his further submission that mere change in the signature itself is insufficient to exclude the respondent from the liability. So also, he contends that the opinion of the expert is not the conclusive proof and looking to the conduct of the respondent in relation to the signatures on the other documents, the accused have not produced any material to rebut the presumption that arises under Section 139 of the Act.
9 Crl.A 1234/07 C/w Crl.As 1235 & 1314/07 On the other hand, learned counsel for the respondent submitted that the appellants have taken disadvantage of a good relationship of the respondent and after taking the unsigned cheque leaves have forged the signature of the respondent and presented the cheques and has made a false claim. Therefore, he contends that the first appellate Court was justified in setting aside the conviction and granting an acquittal.
6. The scrutiny of the material placed on record would reveal that the complainants- J.F.Castelino and Eric Robert Rego are the partners of the same firm. Anyhow, their evidence reveals that the amount which is said to have been paid to the respondent/accused is not of the partnership firm and that it is their own money. J.F.Castelino claims that on different occasions, he had advanced a loan to the respondent and in his evidence states that he has totally paid a sum 10 Crl.A 1234/07 C/w Crl.As 1235 & 1314/07 of Rs.40,00,000-00 as a loan to the respondent. His partner Eric Robert Rego claims that he had advanced a sum of Rs.7,00,000-00 as a loan to the respondent and the cheque for a sum of Rs.2,00,000-00 dated 05.05.1997 was issued towards part payment of the loan. After issuance of the cheques by the respondent, they were presented the cheques in time and all the cheques were returned with endorsement of "insufficient funds" and the complainants had produced the cheques return memo and had issued notice-Ex.P3 to the respondent in all the cases.
7. In respect of the notices issued by J.F. Castelino in the former two cases, reference is to the cheques for a sum of Rs.1,00,000-00 and Rs.12,50,000-00 and in respect of the notice issued by Eric Robert Rego in the latter case, reference is to the cheques for a sum of Rs.2,00,000-00 and Rs.5,00,000-00 respectively.
11 Crl.A 1234/07 C/w Crl.As 1235 & 1314/07 The total amount of the loan advanced to the respondent is not stated in notices-Ex.P3. Ex.P5 is the reply of the respondent in the former two cases and he has denied having issued the cheques for a sum of Rs.1,00,000-00 and Rs.12,50,000-00 respectively and it is his specific case that in March 1997, he was not in good health, his mental condition was also not sound and he was admitted to the FR Muller's Hospital at Kankanadi, Mangalore and he was under treatment of Dr. K.S.Shetty, who is examined as D.W.1 in both the cases. He further says that there is no question of issuance of cheques dated 06.03.1997 and 10.03.1997 as he was in the hospital at that time and he also alleges that the cheques were in the custody of the complainant and they are concocted documents. He also says that the said cheques must have taken by the complainant when he was not in sound state of mind. Same is the defence of the respondent in the latter case as well, wherein 12 Crl.A 1234/07 C/w Crl.As 1235 & 1314/07 he alleges that the complaint in the said case being the partner of the same firm and the complainants and managed to misuse the cheques taken without his knowledge.
8. The complainant J.F. CasteLino has produced numerous documents to prove the liability of the respondent and Ex.P6 is an agreement entered into between the appellant and the accused and as could be seen from this document, the debt alleged is Rs.17,77,000-00 in the numeric and the letter relating to the sum of Rs.17,77,000-00 are written by hand by filling the blanks in a typed agreement. Anyhow, the scrutiny of the material placed on record would reveal that there was some liability which the respondent was to discharge by paying the amount. But it is not definite as to whether the amount due was Rs.40,00,000-00 or Rs.17,77,000-00 as there is inconsistency in relation to the amount due from the accused.
13 Crl.A 1234/07 C/w Crl.As 1235 & 1314/07
9. When the complainant proved the signatures of the accused on the cheques issued, a presumption could be raised under Section 139 of the Act and the Court would draw inference that the cheques were issued by the accused towards the discharge of the liability and unless the respondent placed sufficient material on record to rebut the said presumption, there is no bar for the Court to grant conviction.
10. As the respondent has disputed the signatures on the cheques issued, he has examined D.W.3-C.Ashwathappa, an Handwriting Expert to whom the disputed signatures and the admitted signatures of the accused were sent for his opinion and the expert has produced his opinion as well and this expert is also examined as P.W.3 in the latter case. Exs.D17 and 18 is the opinion of the Handwriting Expert-D.W.3 and he states in his evidence that with the help of the magnifiers, 14 Crl.A 1234/07 C/w Crl.As 1235 & 1314/07 comparison microscope, stereoscopic microscope, videospectral comparator in the Forensic Science Laboratory, he compared the disputed signatures and the admitted signatures i.e., the admitted signatures at Exs.A1 to A4 and the disputed signatures on the cheques at Ex.P1(a). It is his version that on examination of the disputed signature on the cheque, he found imitation so as to match to the form observed in admitted signatures and therefore, he states it is the first variation in the signature, which presupposes that there is a difference in the hand in which once the imitate signatures as could be seen from Exs.A1 to A4 which are the admitted signatures of the respondent. The admitted signatures reveal free movement in their execution and it was not found in the questioned signatures. He has assigned many more reasons to conclude that the disputed signatures are not in the same hand used for signing admitted signatures. His report 15 Crl.A 1234/07 C/w Crl.As 1235 & 1314/07 runs to few pages and he has assigned all these reasons and he conclude that the signatures are in different hand. Cross-examination of D.W.3 reveals nothing to disbelieve his version. D.W.3 has been examined as P.W.3 in the latter case wherein the accused examined him as a witness in the chief-examination and the complainant has cross-examined the expert.
11. It is in this contest, it is submitted by learned counsel for the appellants that the evidence of an expert is not conclusive and he contends that it needs corroboration. At the same time, he also brought to the notice of this Court that the respondent even when the signatures on vakalath, 313 statement were shown, he has denied the signatures and therefore, he contends that the conduct of the accused itself in denying the admitted signatures and was not able to identify 16 Crl.A 1234/07 C/w Crl.As 1235 & 1314/07 his own signatures, the counsel contends that the opinion of the expert cannot be relied upon.
12. The scrutiny of the evidence of D.W.3- handwriting expert reveals that he cannot give an opinion about the disputed and admitted signatures which are brought to his notice, unless the scientific method are adopted to find out any variation in the signatures of a person. So, the mere fact that the respondent has not identified his own signature on 313 statement or the vakalath itself is not a ground to reject his version, because he may not be in a position to identify his signature as there is a gap in between the date of signature and his evidence. Signatures of two persons may be similar and the persons may not be identify it and in such circumstances, the opinion of the handwriting expert is sought. Therefore, I am of the opinion that the conduct of the accused in denying the signature on vakalath 17 Crl.A 1234/07 C/w Crl.As 1235 & 1314/07 and 313 statement is not sufficient to reject the expert's evidence.
13. Learned counsel for the appellant has placed reliance on the decision of the Apex Court reported in M/s. Lakshmi Dyechem Vs. State of Gujarat & Ors. in Crl.A. Nos.1870-1990/2012 dated 27.11.2012. The Apex Court in the cheque bounce case held that when the signatures of the person on the cheques do not match his specimen signatures available with the bank and the mere fact that there is change in the signature by the accused itself is not a ground to seek exemption for the offence under Section 138 of the Act. In the aforesaid case, the facts were different. The accused in the said case had contended that the signature does not match with the specimen signature and there was no denial of the signature. In the case on hand, it is the specific contention of the respondent that the 18 Crl.A 1234/07 C/w Crl.As 1235 & 1314/07 cheques were concocted and later the accused/respondent took the defence that the signatures are forged. In view of this difference, disputed and admitted signatures are sent to the opinion of D.W.3 and he had given a detailed report about the signatures being in different hand, the decision of the Apex Court does not apply to a case where a signature of the respondent is forged. The change of signature by one person is different than a signature forged on the cheque. Therefore, the principle laid-down by the Apex Court in the aforesaid decision does not apply.
14. Learned counsel for the appellant also placed reliance on the decision of the Apex Court reported in (1980)1 Supreme Court Cases 704 [Murari Lal Vs. State of Madhya Pradesh]; wherein the Apex Court held as follows:
19 Crl.A 1234/07 C/w Crl.As 1235 & 1314/07 "The hazard in accepting the opinion of any expert is not because they are unreliable witnesses but because all human judgment is fallible.
While the science of identification of finger prints has attained near perfection and the risk of an incorrect opinion is practically non-existent, the science of identification of handwriting is not nearly so perfect and the risk is higher. Therefore, on the facts of a particular case, a court may require corroboration of a varying degree of the evidence of the handwriting expert. There can, however, be no hard and fast rule in this regard.
But there is nothing to justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated.
An expert is not an accomplice and therefore, corroboration of his evidence is not always essential.
An expert deposes and not decides. His duty is to furnish the judge with 20 Crl.A 1234/07 C/w Crl.As 1235 & 1314/07 the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of those criteria to the facts proved in evidence. Therefore, the approach of the Court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant Evidence and decide finally to accept or reject it."
In the aforesaid case, there was a prosecution for forging the signature and the Apex Court held that the opinion of the expert itself is not sufficient and to conclusively prove the forgery, some corroboration is necessary. In AIR 1963 Supreme Court 1728 [Ishwari Prasad Misra Vs. Mohammad Isa], the Apex Court held that the evidence given by experts of handwriting can never be conclusive, because it is, after all, opinion evidence. So, placing reliance on these Judgments of the Apex 21 Crl.A 1234/07 C/w Crl.As 1235 & 1314/07 Court, it is the submission of learned counsel that when the expert's opinion is not conclusive in the context of the conduct of the respondent in denying his own signatures, the counsel contends that the defence cannot be accepted. It is relevant to note that the principle laid-down by the Apex Court is in a case where there was a prosecution for the charge of forgery. So, to prove the forgery, it is necessary for the prosecution to establish the case beyond reasonable doubt and mere opinion of the expert itself is held to be insufficient unless there is some corroboration. But, in the case on hand, it is not the prosecution of the matter and it is the defence of the respondent that the signature is forged and the burden on the respondent is not to the extent of prove beyond reasonable doubt. In the proceedings under Section 138 of the Act, the burden is on the principle of preponderance of probabilities and it is sufficient in case if the 22 Crl.A 1234/07 C/w Crl.As 1235 & 1314/07 respondent raises serious doubt in accepting the case of the complainant to rebut the presumption that arises under Section 139 of the Act. Though the respondent has to some extent admitted the liability, that may not be a ground to seek a conviction when the appellant has approached the Court to prosecute the respondent for the charge under Section 138 of the Act, as the signatures on the cheque is of great importance and when the respondent has disputed the signature, if the respondent is able to probablize his defence, that itself is sufficient to rebut the presumption. So, in my considered opinion, the evidence of the expert-D.W.3 in the former two cases and P.W.3 in the latter case itself is sufficient to hold that his opinion is sufficient to rebut the presumption that arises under Section 139 of the Act.
15. That apart, the respondent was addicted to liquor, he was not mentally sound and he was 23 Crl.A 1234/07 C/w Crl.As 1235 & 1314/07 admitted in the hospital of D.W.1 for the period from 02.03.1997 to 22.03.1997. But, two cheques in the two former two cases are dated 06.03.1997 and 10.03.1997. The fact that he was admitted to the hospital and was under treatment of Dr.K.S.Shetty has been spoken to by D.W.1- Dr.K.S.Shetty and there is no reason to disbelieve his evidence of treatment given. Furthermore, it is relevant to note that the complainant in the latter case is a partner of the same firm for which the complainant in the former two cheques is also the partner and the possibility of the cheques taken by the complainant in the former two cases might have been used by the complainant for filing a latter case through his partner. So, taking into consideration the circumstances, I am of the opinion that the appellant has not made out any grounds to warrant interference in the Judgment and Orders acquitting the respondent.
24 Crl.A 1234/07 C/w Crl.As 1235 & 1314/07
16. That apart, this is an appeal against an acquittal and the appellate Court will be slow in interfering with such order. Even if a second view is possible, the one accepted by the trial Court cannot be disturbed. On this aspect, the respondent has relied upon the decision of the Apex Court reported in 2013 AIR SCW 339 [Mookkiah and Anr. Vs. State, rep. by the Inspector of Police, Tamil Nadu]; wherein the Apex Court held:
"An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
25 Crl.A 1234/07 C/w Crl.As 1235 & 1314/07 If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
Considering the principles aforesaid and the facts and the evidence on re-appreciation, the appeals are without any merit.
In the result, the appeals are dismissed.
Sd/-
JUDGE.
Ksm*