Madras High Court
M/S.Decon Construction vs J.A.Stephen on 3 December, 2010
Equivalent citations: AIR 2011 (NOC) 362 (MAD.) (MADURAI BENCH), 2011 ACD 415 (MAD)
Author: S.Tamilvanan
Bench: S.Tamilvanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 03/12/2010 Coram The Honourable Mr. Justice S.TAMILVANAN Crl.R.C(MD)No.706 of 2010 and M.P.(MD).No.1 of 2010 1.M/s.Decon Construction, Rep by Managing Director Gobalakrishnan S/o.Kumaravel, 258-A, Second Middle Street, Thiyagaraja Nagar, Tirunelveli-627 011. 2.Gobalakrishnan ...Revision Petitioners vs. 1.J.A.Stephen 2.Krishnammal ...Revision Respondents Criminal Revision Petition filed under Section 397 read with 401 of the Code of Criminal Procedure, seeking an order to call for the records relating to the order in Cr.M.P.No.1352/2010 in S.T.C.20/06 on the file of Judicial Magistrate No.2, Tirunelveli, Dated 08.09.2010 and set aside the same. !For Petitioners... M/s.Eddy and Embboss Law Firm ^For Respondents... M/s.Jeyapaul Associates for R1 :ORDER
Aggrieved by the order, dated 08.09.2010, made in Cr.M.P.No.1352/2010 in S.T.C.20/06 on the file of Judicial Magistrate No.2, Tirunelveli, this criminal revision has been preferred.
2. It is an admitted fact that the case was taken on file by the court below on file by the court below on the complaint given by the first respondent / complainant under Sections 138 and 142 of Negotiable Instruments Act r/w Section 200 Cr.P.C.
3. As per the criminal complaint, it is stated that the second petitioner as Managing partner of the first petitioner, M/s. Decon Constructions, a firm and in the individual capacity, signed the cheque on behalf of the first petitioner and issued for the consideration received, however, the cheque was dishonoured due to insufficient funds. After the dishonour of the cheque, the first respondent / complainant issued legal notice to the revision petitioner / accused, then, filed the complaint before the court below. When the matter is pending, the petitioners filed a petition, seeking an order to send the cheque to decide the age of the ink.
4. Learned counsel appearing for the petitioners submitted that the cheque was given for collateral purpose, that was misused by the first respondent / complainant and therefore, the age of the ink used for putting the signature and writing of the other portion of the cheque is relevant. However, the Court below dismissed the petition filed by the petitioners.
5. Per contra, learned counsel appearing for the first respondent submitted that the petitioners have admitted the signature available in the dishonoured cheque and therefore, there is no necessity for sending the cheque to any expert for the purpose to decide the age of the ink. According to the learned counsel appearing for the first respondent, it is a clear abuse of process of the court and he further contended that there is no error on the part of the court below in dismissing the petition filed by the petitioner, as it was a delay tactics adopted by the petitioners.
6. It is not in dispute that the second petitioner had signed the cheque on behalf of the first petitioner, M/s. Decon Constructions, as Managing partner of the firm and therefore, there is no possibility for issuing a blank cheque knowing the fact that any amount could be filled up by the holder against the firm. Admittedly, the second petitioner is not an illiterate person, he is running M/s. Decon Constructions, a firm and he has been described as Managing Partner. As per the complaint, it is stated that the business organisation is a partnership firm and the second petitioner is admittedly the administrator of M/s. Decon Constructions, business institution. Hence, the peculiar plea of handing over signed blank cheque cannot be accepted, since no reasonable prudent man and that too an administrator would normally had never any blank cheque on behalf of a business concern by putting his signature and seal.
7. It is further brought to the notice of this Court that similar petition was filed by the petitioners herein to sent the cheque to find out the age of the ink to the Forensic Laboratory, Madurai. As admitted by both the learned counsel, it was returned to the court stating that the age of the ink could not be found out in the said Laboratory. Again the petitioner filed another petition to send the disputed cheque along with a document containing admitted signatures to the Forensic Laboratory at Hyderabad, the same was also returned from the said Laboratory stating that the age of the ink could not be deducted in the forensic laboratory at Hyderabad. Now the petitioners / A1 and A2 have come forward with a petition to send the disputed cheque to the Director, Government Forensic Laboratory, Madhuban Chowk, Rohine, New Delhi - 110 085.
8. In State of Maharashtra vs. Sukhdeo Singh reported in AIR 1992 SC 2100, the Hon'ble Apex Court has held as follows :
"Court should be slow to compare disputed document with admitted document for comparison although section 73 empowers the court to compare disputed writings with the specimen / admitted documents shown to be genuine. Prudence demands that Court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen / admitted writings is not of high standard."
9. In T.Nagappa vs. Y.R.Muralidhar reported in 2008 (5) SCC 633, the Hon'ble Apex Court has held that though there could be presumption raised under Section 118 (a) or 139 of Negotiable Instruments Act, when there is a defence raised by the accused that the complainant had misused the cheque, opportunity must be given to the accused for adducing rebuttal evidence thereof, since the law places burden on the accused, he must be given an opportunity to discharge the burden. The Hon'ble Apex Court has further held as follows :
"8.An accused has a right to fair trial. He has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognised by Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure, which reads as under:
"243. Evidence for defence -(1) (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."
9.What should be the nature of evidence is not a matter which should be left only to the discretion of the Court. It is the accused who known how to prove his defence. It is true that the Court being the master of the proceedings must determine as to whether the application filed by the accused in terms of sub-section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to being on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses, etc. If permitted to do so, steps therefor, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant."
10. In Kalyani Baskar vs. M.S.Sampoornam reported in 2007 (2) CTC 364, the Hon'ble Apex Court has held as follows :
"12.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 ."
11. This Court relying on the decision rendered by the Hon'ble Apex Court in Kalyani Baskar vs. M.S.Sampoornam reported in 2007 (2) CTC 364 and the decision rendered by this Court in Ramakrishnan P.R vs. P.Govindarajan reported in 2007 (1) MLJ (Crl) 1297, rejected the plea of the accused to send the cheque for expert opinion to found out the age of the ink used in the cheque.
12. In P.Arumugam vs. Rajamani, reported in 2007 (1) LW (Crl) 491, relying on the decision rendered by the Hon'ble Apex Court in Kalyani Baskar vs. M.S.Sampoornam reported in JT 2007 (1) SC 77, this Court allowed the revision petition and directed the Court below to send the disputed document for expert opinion.
13. It is seen that both the decisions of this Court seem to be contra, however, I am of the view that the cases have been decided by the two learned Judges of this Court only applying the rulings of the Hon'ble Apex Court on the available facts and circumstances of the case. Therefore, this Court is of the view that there is no contradiction in the view taken by two learned Judges of this Court.
14. In Kalyani Baskar vs. M.S.Sampornam, reported in 2007 (2) CTC 364 and T.Nagappa vs. Y.R.Muralidhar reported in 2008 (5) SCC 633, the Hon'ble Supreme Court has categorically held that reasonable opportunity must be given to the accused to discharge his burden. It is not in dispute that under Sections 118
(a) and 139 of Negotiable Instruments, the Court can draw legal presumption, however, he same is not a rebuttal presumption.
15. Section 118 (a) of Negotiable Instruments Act reads as follows :
118 Presumptions as to negotiable instruments - Until the contrary is proved, the following presumption shall be made : -
(a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
16. Similarly, Section 139 of Negotiable Instruments Act reads thus :
139. Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability.
17. As per the adverserial system of criminal jurisprudence, the prosecution has to establish the alleged guilt against the accused beyond reasonable doubt and accordingly, the burden is upon the prosecution to establish the guilt. If the guilt is not established by the prosecution beyond reasonable doubt, the accused is entitled to get acquittal. Even if there is suspicious circumstance, the benefit of doubt shall be given to the accused.
18. The Hon'ble Apex Court in T.Nagappa's case has categorically held that right to defend is a fundamental right as enshrined under Article 21 of the Constitution of India and the right to defend oneself and for that purpose, adduce evidence is recognised by the Parliament, as per sub-section (2) of Section 243 of the Code of Criminal Procedure. However, no one can adopt delay tactics or abuse the process of law or the court under the guise of reasonable opportunity.
19. In Kalyani Baskar's case, the Hon'ble Apex Court has categorically held that the Magistrate, who is empowered to pass orders, has to allow the petition, unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. If the object of the accused is apparent that he is adopting delay tactics, without any justifiable reason, the Magistrate has to reject the request for sending the document for expert opinion.
20. The case registered under Section 138 of Negotiable Instruments Act is different from that of the cases registered for the offence punishable under Indian Penal Code. It is an admitted fact that Developed countries mostly using cheque transactions, as it would be beneficial for commerce and economic development and further, encouraging cheque transactions could minimise persons evading Income-Tax and other taxes payable to the Government. The pendency of cases registered under Section 138 of Negotiable Instruments Act, decades together would certainly discourage the cheque transactions.
21. As per Section 139 of the Negotiable Instruments Act if the signature of the cheque is admitted, there is a presumption that the drawer of the cheque has authorised the holder, even to fill up the blanks. However, as it is a rebuttal presumption,the burden is shifted on the accused.
22. It could be seen in many of the cases that the verbatum defence raised by the accused is that his signed blank cheque was misplaced and that was misused by the respondent / complainant. It could not be disputed that no reasonable prudent man would keep a blank signed cheque in a careless manner, without knowing the fact that it could be misused by any person. Even in such case, in order to protect the right of the accused, in the light of the decisions rendered by the Hon'ble Apex Court, the Court has to give reasonable opportunity to the accused to adduce rebuttal evidence. In such circumstances, the conduct of the party is more relevant to hold, whether the object of the accused is vexations or delaying criminal proceedings.
23. This Court in a similar Criminal Revision Petition in Crl.R.C.No.460 of 2009, by order, dated 02.12.2009 had allowed the petitioner permitting the petitioners / A1 and A2 to send the cheques for expert opinion to consider the age of the ink. In the said order, this court has made it clear that the petitioners / A1 and A2 did not say neither they issued the cheque nor it was forged by the complainant, conveniently, they did not send the specimen signatures as requested by the expert for the comparison of the signature. The petitioners / A1 and A2 took a different stand and now the present stand was that the Laboratory at Madurai is not having facility to give opinion on the questions 2 to 6 and therefore, the cheque in question may be forwarded to the Laboratory at Hyderabad and that the petitioners have not pressed question number 1 relating to the comparison of the signature and they were particular about the age of the ink. From the findings, it is clear that the petitioners / A1 and A2 have not disputed the signature available in the cheque. Further, in the operative portion of the order, this Court had directed the Judicial Magistrate, Tirunelveli to send the question for the opinion of the expert regarding question numbers 2 to 6 alone relating to the age of the ink and it was also made clear that if the report is not received within three months from the date of sending the cheque in question, the trial court should proceed with the case and dispose the same on merits in accordance with law. Though the order was passed on 02.12.2009 and as per the report of the Forensic Laboratory, Hyderabad, they could not find out the age of the ink in the Laboratory, again the petitioners have come forward with a petition to send the cheque to the Laboratory, New Delhi. Admittedly, the cheque amount is for Rs.5,25,000/-, that was issued by the second petitioner on behalf of M/s. Decon Constructions, the first petitioner herein, as its Managing partner, since it is a firm.
24. On the aforesaid circumstances, seeking an order to send the cheque once again to find out the age of the ink has no relevance to decide the case, as held by the Hon'ble Apex Court in Kalyani Baskar's case. It has to be viewed that the court below has held that the object of the revision petitioner is to vexation and delaying the criminal proceedings. The defence raised that the Managing partner of the petitioners' firm had issued a blank signed cheque with the seal of the firm cannot be justified as true, as it would not be an act of a reasonable prudent man and that too by a Managing partner of a firm.
25. Considering the order passed by the court below, in the light of various decisions rendered by the Hon'ble Apex Court, I am of the considered view that there is no error or illegality in the impugned order passed by the court below, in dismissing the petition, so as to warrant any interference of this Court.
26. In the result, this criminal revision petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. The Court below is directed to dispose the case, solely on merits, uninfluenced by the finding of this court, if any, according to law, within a period of two months from the date of receipt of a copy of this order, without causing further delay.
tsvn To The Judicial Magistrate No.2 Tirunelveli.