Bangalore District Court
Chikkegowda D.T vs Aged About 41 Years on 11 December, 2015
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 11th day of December 2015
PRESENT:
Sri.Shivaji Anant Nalawade, B.Com., LL.B.(Spl)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
CRIMINAL APPEAL No.364/2015
APPELLANT/ Chikkegowda D.T.
ACCUSED : Aged about 41 years,
Residing at No.64,
Beereshwar Nilaya,
4th Cross, 6th Block Annex,
Church Street, Rama Temple Road,
Koramangala,
Bengaluru - 560 095.
(By Sri.C.N.Manjappa, Advocate)
- Versus -
RESPONDENT/ D. Nagaraga
APPELLANT : S/o Late. Doddaiah,
Aged about 43 years,
Residing at No.1266,
9th Main, 12th Cross,
West of Chord Road,
Mahalakshmipuram,
Bengaluru - 560 086.
(By Sri.K.N.Theertha Kumar,
Advocate)
JUDGMENT
The appellant/accused has preferred this appeal under Sec.374(3) Cr.P.C. challenging the judgment passed by the XV Addl. Chief Metropolitan Magistrate, Bengaluru City, in 2 Crl.Appeal.364/2015 C.C.11811/2011 dated 09-02-2015, wherein he has been convicted for the offence punishable under Sec.138 Negotiable Instruments Act and sentenced to pay fine of Rs.2,05,000/- and in default of payment of fine shall undergo simple imprisonment for six months.
2. The appellant was the accused and respondent was the complainant before the trial court. For the sake of convenience, rank of parties is referred to as stood before the court below.
3. The brief facts leading for disposal of this appeal are as follows:
It is the case of the complainant that accused is his relative and he is in acquaintance with him. Accused approached him for financial assistance for the purpose of domestic commitments and he has advanced Rs.1,95,000/- in the second week of April-
2010 to the accused and accused has agreed to repay the said amount within 6 months. Accused has also agreed to pay the interest @ 18% p.a. on the said amount. Accused for discharge the said loan, has issued cheque bearing No.016029 dated 29- 10-2010 drawn on The Kalidasa Co-operative Bank Ltd., Karnataka Pradesh Kurubara Sanga Building, 2nd Main, Gandhinagar, Bengaluru, for Rs.1,95,000/-. He has presented 3 Crl.Appeal.364/2015 the said cheque for encashment within limitation, the said cheque dishonoured for 'funds insufficient' in the accounts of the accused thereafter he has intimated regarding dishonour of the cheque to the accused and called upon him to repay the cheque amount. Accused has not repaid the said amount thereafter he has issued legal notice within limitation and intimated him regarding dishonour of the cheque and called upon him to repay the cheque amount. The Notice duly served on the accused, accused has not repaid the cheque amount and thereafter he has lodged complaint before the trial court within limitation and thereby accused has committed the offence under Sec.138 of Negotiable Instruments Act.
4. After complainant has lodged the private complaint before the trial court, it has taken cognizance of the offence and recorded sworn statement of the complainant. The trial court after finding that there is prima-facie case against the accused, case has been registered in Register No.3 for the offence punishable under Sec.138 Negotiable Instruments Act and accused was summoned to appear before the court. Accused in pursuance of the summons appeared before the trial court through his counsel and he has been enlarged on bail. The copy of the complaint and other documents filed along with the
4 Crl.Appeal.364/2015 complaint furnished to the accused. Thereafter, the trial court has framed accusation under Sec.251 Cr.P.C. for the offence punishable under Sec.138 of Negotiable Instruments Act and read-over the same to accused. Accused pleaded not guilty and claimed to be tried and thereafter case is posted for complainant's evidence. The complainant in order to prove the guilt of the accused got examined himself as PW.1. Complainant in support of his case produced 8 documents and got them marked as Ex.P1 to Ex.P8 and closed its side. Thereafter, the trial court has recorded Sec.313 Cr.P.C. statement of accused to enable him to explain incriminating circumstances appearing against him in the prosecution witnesses. Accused denied the statement in toto and further stated that he has defence evidence. Accused examined himself as DW.1 and examined one witness on his behalf as DW.2 and closed his side thereafter trial court has posted the case for arguments.
5. The trial court heard the arguments advanced by the counsel for the complainant and accused in length and posted the case for judgment and passed the judgment on 09-02-2015 and convicted the accused for the offence punishable under Sec.138 of Negotiable Instruments Act and ordered to pay fine 5 Crl.Appeal.364/2015 of Rs.2,05,000-00 to accused and in default of fine accused shall undergo simple imprisonment for six months.
6. The accused being aggrieved by the judgment and order passed by the trial court in C.C.11811/2011 dated 09-02- 2015 came in appeal on the following among other grounds;
The order passed by the trial court is devoid of justice as he made a venture to arrive at his own conclusion which is totally uncalled for. The trial court has erred in not considering the alterations made in the disputed cheque. The trial court has not considered the fact that alterations made in the disputed cheque would vary the rights, liabilities or the legal position of the accused. The trial court has not taken into consideration the fact that the alternations made in the disputed cheque have not been endorsed by the accused. Thus, the very cheque becomes void under Sec.87 of Negotiable Instruments Act. The trial court has failed to consider the fact that the amount mentioned in the disputed cheque is ignored, the words and digit which are inserted or corrected necessarily requires an attestation of the accused with his full signature which is totally absent on the disputed cheque. Thus, the acceptance of the very cheque by the Banker without adhering to this ordeal is a great lapse caused. The judgment of the trial court do not stand against the 6 Crl.Appeal.364/2015 test of law and liable to be set aside. The trial court has not appreciated the fact that the accused has stated that he has borrowed an amount of Rs.5,000/- from the complainant which amounts to saying that he never consented for putting the amount of Rs.1,95,000/- on the disputed cheque. The trial court has not allowed the appellant/accused to seek Expert opinion and if the trial court has allowed it, he could have established the alterations by preponderance of probabilities. Trial court by rejecting the application moved by him under Sec.45 of the Evidence Act for sending the disputed cheque for Export opinion, has denied the fair opportunity and the trial court has deceived from the basic tenets of the principles of natural justice. During the course of proceedings, it is the bounden duty of the court o ensure that the parties to the dispute are given with the due opportunity to present their evidence. When it is denied then them is no fair trial. Fair trial includes offering of fair and proper opportunities by law to prove their innocence. Adducing the evidence in support of the defence is a valuable right, rejection of such a right means denial of the fair trial. In the present case, the trial court by rejecting the application moved by the accused/appellant under Sec.45 of the Evidence Act to refer the cheque for Expert opinion has denied the fair trial to the 7 Crl.Appeal.364/2015 accused. On these grounds and among others the appellant/accused prayed for setting aside the judgment and sentence passed by the trial court and prayed for remanding the case to the trial court with a direction to send the disputed cheque for Expert opinion and disposing the matter afresh one after obtaining the Report from the Expert.
7. This appeal was presented before the Hon'ble City Civil & Sessions Judge, Bengaluru, it is registered as Criminal Appeal No.364/2015 and made-over to this court for disposal according to law. After the receipt of the records this court has issued notice to the respondent and the respondent appeared through its counsel. Thereafter the LCR's were secured and they are before the court.
8. Heard the arguments advanced by the learned counsel for the appellant and respondent in length.
9. The points that arise for my determination are as under:
1. Whether the trial court has committed any error in rejecting the application moved by the accused/appellant under Sec.45 of the Evidence Act and denied to present his evidence and thereby denied the fair trial and proper opportunity to the accused to prove his innocence?
8 Crl.Appeal.364/2015
2. Whether the interference is necessary in the impugned judgment and sentence under appeal from this court?
3. What Order?
10. After hearing the arguments and perusal of documents placed before me, my findings to the above points are as follows:
Point No.1 & 2 : In the Affirmative;
Point No.3 : As per final order
for the following;
REASONS
11. POINT No.1 & 2: The above points are inter- connected, hence they are taken up for discussion together in order to avoid repetition.
12. It is case of the complainant that accused has availed loan of Rs.1,95,000/- from him and for due repayment of the same accused has issued cheque as per Ex.P1 to him, he has presented the said cheque for encashment within limitation, the said cheque was dishonoured, thereafter he has intimated regarding dishonour of the cheque to the accused and called upon him to repay the cheque amount, he has also issued legal notice to the accused within limitation and called upon him to 9 Crl.Appeal.364/2015 repay the cheque amount within 15 days, accused has not repaid the amount thereafter he has presented private complaint before the trial court within limitation and thereby accused has committed the offence under Sec.138 of Negotiable Instruments Act.
13. It is the case of accused that Ex.P1-cheque is from the cheque leaves book issued to his account, the signature on Ex.P1-cheque is belongs to him, the amount of Rs.5,000/- written in figures in Ex.P1-cheque is written by him. Ex.P1, '1' and '9' figures written before Rs.5,000/- is not written by him. '1' and '9' figures before Rs.5,000/- is inserted by the complainant and he has made material alterations in the cheque. The name of the complainant and the amount written in words in Ex.P1 is not in his handwriting. Except the figure Rs.5,000/- written in Ex.P1 and his signature, other writings are not belongs to him. Complainant has made material alterations to the cheque, he has given application before the trial court under Sec.45 of the Indian Evidence Act for sending the cheque to the Expert for examination and obtaining the Report. The trial court has rejected his application by order dated 27-10-2014. In the said order, trial court has observed that, "no doubt it is true that on perusal of Ex.P1, figure '1' and figure '9' appears to be over 10 Crl.Appeal.364/2015 written. This is a glaring writing and it can be compared by the court itself at the time of recording the evidence, for the sole reason cheque cannot be referred to Expert." The said observation of the trial court is incorrect. The trial court has not provided proper opportunity for him to set-up his defence and trial court has denied the fair trial to him.
14. In the present case, perusal of the records of the trial court goes to show that, accused has filed application under Sec.45 of the Evidence Act praying the trial court to refer Ex.P1- cheque for Handwriting Expert for submitting the Report. Complainant has filed objections to the said application and trial court by its Order dated 27-10-2014, rejected the application moved by the counsel for the accused for referring the Ex.P1- cheque to the Handwriting Expert for submitting his Report. Further in the said order, the trial court has observed as under;
"No doubt, it is true that on perusal of Ex.P1, '1' and '9' appears to be over written. This is a glaring writing and it could be compared by the Court itself at the time of recording evidence. For this sole reason only, cheque cannot be refer to Expert and rejected the application".
15. The counsel for the appellant has submitted that, accused has lead evidence and wherein he has stated that 11 Crl.Appeal.364/2015 on Ex.P1-cheque only Rs.5,000/- figure is written by him and rest of the handwriting is not belongs to him. Before Rs.5,000 figure '1' and '9' has been inserted and no signature has been made and the insertion is a material alteration. So, it is necessary to send the Ex.P1-cheque for Handwriting Expert and Report of the Handwriting Expert will help the accused to prove his defence. The trial court has rejected his application and thereby denied him to prove his innocence. So, the trial court has not provided fair trial to him.
16. Further, the counsel for the appellant has relied upon the Judgment of the trial court and the trial court has observed in the judgment that, "there is no provision in the Negotiable Instruments Act itself, where under Sec.18, if there is any differences in the amount written in figure as well as in words, the amount written in words prevails over the amount written in figure. In the instant case, on careful scrutiny of the cheque at Ex.P1, it cannot be held that the amount written in figure over '1' and '9' has been materially altered. On the face of it, it can be said that it is written twice. As rightly submitted by the learned counsel for the complainant, when the cheque in question was issued for Rs.5,000/- as alleged by the accused, there should not have been any space left prior to 12 Crl.Appeal.364/2015 figure '5'. Apart from that, the amount written in the words perfectly matches with the amount written in figures. It is significant to note that, it is the primary contention of the accused that cheque in question was issued for Rs.5,000/- and the complainant when he came to the house of the accused to discuss about some property issue, at that time the cheque was taken. It is mere oral evidence of the accused without there being any substance. Apart from that, in this regard the cross-examination was also directed to the complainant but except the suggestion, nothing worth is elicited."
17. Relying upon the above observation, the counsel for the appellant has submitted that, trial court has held that when there is difference in the amount mentioned in words and amount mentioned in figures, the amount mentioned in figures will prevail. Further the trial court has observed that, careful perusal of the cheque discloses that, figure '1' and figure '9' have been overwritten and the observation is incorrect. In the present case, it is the specific case of the accused that, in Ex.P1- cheque, the amount of Rs.5,000/- written in figure and signature on cheque is written by him and rest of the writing in Ex.P1- cheque is not belongs to him and in view of that defence, the accused has moved the application under Sec.45 of the Indian 13 Crl.Appeal.364/2015 Evidence Act to refer Ex.P1-cheque to Handwriting Expert to Report regarding the said contention and trial court has rejected the said application by its order dated 27-10-2014. When it is the specific defence of the accused that, he has written only Rs.5,000/- in figure and signature on Ex.P1 and rest of the writing is not belongs to him, the observation of the trial court that if there is a conflict between the amount mentioned in figure and amount mentioned in words, the amount mentioned in words will prevail is not acceptable. When there is no dispute regarding the writings made in the Ex.P1-cheque and in such case, if there is conflict between the amount mentioned in figure and amount mentioned in words, the amount mentioned in words will prevail. In the present case, accused is specifically stating that, except the amount of Rs.5,000/- written in figure and signature, other writings are not belongs to him. So, the said observation of the trial court is erroneous one. Further the trial court has not taken the note that, if any handwriting is made, the person who has over written has to put his initial there and in Ex.P1 as per the observation of the trial court there is a over writing in figure '1' and '9' and if Ex.P1 is perused, no initial is put there, no explanation is coming forward from the side of the complainant why small signature is not put on the 14 Crl.Appeal.364/2015 place where over writing is made in Ex.P1. The said aspect has to be explained by the complainant and complainant has not explained the same. When any over writing is made, the person who has written the same has to put his signature there. For the sake of arguments if it is taken that, '1' and '9' figure has been over written by the accused himself, then initial has to be put there and no signature or initial is there for making such alterations. So, the observation of the trial court that, on careful scrutiny of the cheque at Ex.P1, it cannot be held that the amount written in figure over '1' and '9' as materially altered is erroneous one. The counsel for the appellant has relied upon the judgment of our own Hon'ble High Court in Crl.Apl.No.1621/2007 dated 13-03-2014 (Case: Yashwanth Parameshwar Mangarshi Vs. Venkatraman Ganapathi Hegde), wherein the lordship of our Hon'ble High Court has observed as under;
"During the cross-examination also complainant has stated that the material alterations have been done by accused. Even if it is presumed that the alterations have been made by accused, then at least he should have put his signature to certify that he himself has made the alterations. Hence, it cannot be believed that the accused has made such alterations even prior to issuance of cheque to the complainant. In this regarding it is relevant to quote Sec.87 of Negotiable Instruments Act, which reads thus;
15 Crl.Appeal.364/2015 "87. Effect of material alteration -
Any material alteration of a Negotiable Instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties;
Alterations by indorsee - And any such alterations, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof."
18. In the present case in hand also, admittedly there is a over writing in figure '1' and '9' which can be seen with naked eyes and the trial court has also admitted the same. The trial court has observed that, the said figures are over written. It is the contention of the accused that, the said cheque was only for Rs.5,000/- and he has put signature and written Rs.5,000/- in figure and rest of the writing is not belongs to him and if any over writings or alterations are there, those are to be signed by the person who has issued the cheque in view of Sec.87 of Negotiable Instruments Act. When it is not signed, the same would amounts to material alterations. In the present case, in order to prove his defence, accused has moved application under Sec.45 of the Indian Evidence Act. After completion of the evidence to refer the cheque for Handwriting Expert for submitting his Report in respect of all the said facts and the trial 16 Crl.Appeal.364/2015 court has rejected the application with observation that, "No doubt, it is true that on perusal of Ex.P1, '1' and '9' appears to be over written. This is a glaring writing and it could be compared by the Court itself at the time of recording evidence. For this sole reason only, cheque cannot be refer to Expert", which is erroneous one.
19. The counsel for the appellant has relied upon the citation of Hon'ble Apex Court reported in CDJ 2006 SC 1147 (Case:Kalyani Baskar Vs. M.S.Sampoornam), wherein the Hon'ble Apex Court has held that;
"Sec.243(2) is clear that a Magistrate holding an enquiry under Cr.P.C. in respect of an offence triable by him does not exceed his powers under Sec.243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a Handwriting Expoert 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 17 Crl.Appeal.364/2015 document for the examination and opinion of the Handwriting Expert has deprived the appellant of an opportunity of rebutting it."
Further Hon'ble Apex Court has observed that;
"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 Sec.243 of Cr.P.C. without naming any person as witness or anything to be summoned, which are to be sent for 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."
18 Crl.Appeal.364/2015
20. In the present case in hand also it is the specific case of the accused that, in Ex.P1 figure Rs.5,000/- and the signature is in his handwriting and rest of the writing in Ex.P1 are not belongs to him. There is a material alteration in Ex.P1-cheque and accused has moved application before the trial court after completion of the evidence for sending the Ex.P1-cheque to the Handwriting Expert for reporting his grievance and the trial court has rejected the said application. So, the trial court has not given the opportunity to the accused to present his case and there is no fair trial to the accused as trial court has not given opportunity to the accused to prove his innocence. So, the principles laid down in the above cited ruling are aptly applicable in the present case in hand. So, the trial court has committed error in rejecting the application moved by the accused/appellant under Sec.45 of the Evidence Act and not given proper opportunity to the accused to prove his defence. So, it is necessary to set-aside the judgment of trial court under appeal and remand the matter with a direction to consider the application moved by the accused/appellant under Sec.45 of the Indian Evidence Act for referring the Ex.P1-cheque for Handwriting Expert in view of the principles laid down in the above referred citation of Hon'ble Apex Court and obtain the 19 Crl.Appeal.364/2015 Report of the Handwriting Expert and decide the matter afresh in accordance with law. The trial court has committed error in rejecting the application moved by the accused/appellant under Sec.45 of the Evidence Act and denied the accused/appellant to present his evidence and thereby denied the fair trial and proper opportunity to the accused to prove his innocence. So, interference is necessary in the impugned judgment and sentence under appeal. Hence, for the above discussions, I answer point No.1 and 2 in the AFFIRMATIVE.
21. POINT No.3: In view of my findings on point Nos.1 & 2 and reasons stated therein, I proceed to pass the following:
ORDER The Criminal Appeal preferred by the appellant/accused is allowed.
The judgment of the trial court, under appeal is set-aside.
The mater is remanded to the trial court with a direction to consider the application moved by the accused/appellant under Sec.45 of the Indian Evidence Act for referring Ex.P1-cheque for Handwriting Expert, in view of the principles laid down in the citation of Hon'ble Apex Court in CDJ 2006 SC 1147 (Case:Kalyani Baskar Vs. M.S.Sampoornam) and obtain the Report of 20 Crl.Appeal.364/2015 Handwriting Expert and decide the matter afresh by giving opportunity to both sides in accordance with law.
In the above facts and circumstances, no order as to cost.
Send back the LCR's along with the copy of judgment to the trial court.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 11th day of November 2015).
(SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.