Madras High Court
Sheeja Vijayashankar vs Thangam on 18 February, 2019
Author: P.Velmurugan
Bench: P.Velmurugan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 18.02.2019
CORAM:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.R.C.No.221 of 2019 and
Crl.M.P.Nos.2330 & 2333 of 2019
Sheeja Vijayashankar ... Petitioner
Vs
Thangam ... Respondent
PRAYER: Criminal Revision Case filed under Article 397 r/w 401 of
Criminal Procedure Code to set aside the order made in C.M.P.No.3962 of
2017 in S.T.C.No.2446 of 2015 by an order dated 17.04.2018 on the file of the
Judicial Magistrate No.II, Pollachi, Coimbatore District and allow the
Criminal Revision Petition.
For Petitioner : Mr.C.Veeraraghavan
For Respondent : Mr.N.Manokaran
ORDER
This Criminal Revision Case has been filed under Section 397 r/w 401 of Cr.P.C. to set aside the order made in C.M.P.No.3962 of 2017 in S.T.C.No.2446 of 2015 by an order dated 17.04.2018 on the file of the http://www.judis.nic.in 2 Judicial Magistrate No.II, Pollachi, Coimbatore District, dismissing the petition in C.M.P.No.3962 of 2017 in S.T.C.No.2446 of 2015 filed under Section 45 of Indian Evidence Act, seeking expert's opinion to ascertain the hand writing variance and the age of the ink. After hearing both sides, the learned Judicial Magistrate No.II, Pollachi, dismissed the petition, by an order dated 17.04.2018. The said order is put in challenge in the present Criminal Revision Case.
2. The respondent herein filed a private complaint under Section 200 Cr.P.C., before the Learned Judicial Magistrate No.II, Pollachi, for the offence under Section 138 of the Negotiable Instruments Act, against the Revision Petitioner. The learned Magistrate No.II, Pollachi, taken the complaint on file in STC.No.2446 of 2015. During the pendency of the case, the petitioner/accused herein had filed a petition under Section 45 of Indian Evidence Act 1872, which was dismissed by the learned Judicial Magistrate No.II, Pollachi.
3. Aggrieved against the said order passed by the learned Judicial http://www.judis.nic.in 3 Magistrate in C.M.P.No.3962 of 2017 against which the petitioner has filed the present Revision Case.
4. The learned counsel appearing for the petitioner would submit that, the learned Judicial Magistrate No.II, Pollachi, dismissed the petition only on the sole ground of delay. So, he prays to allow this revision petition.
5. The learned counsel appearing for the respondent would submit that, the petitioner herein has come up with the petition after a period of 6 years. The petition is a belated one and would not be in the interest of justice. The intention is clearly shows that the petitioner wants to drag on the proceedings. No document containing admitted signature of the relevant period has been produced along with the petition.
6. The presumption of issuance of the cheque is in favour of the complainant, the petitioner ought to have raised the same at the first instance when, the notice under Section 138 of the NI Act, was received by the petitioner, after receiving the notice the petitioner has never replied for http://www.judis.nic.in 4 the same. The present stand of the petitioner is that the signature on the cheque is a forged one is not at all believable. The petitioner ought to have come up with the petition with the documents containing admitted signature of the petitioner much earlier. Now, the petitioner is relying on her own fault and trying to prolong the matter. Originally the case was filed in the year of 2011. Thus, the petition is liable to be dismissed for want of bona fide reasons on the part of the petitioner.
7. Considering the above facts and circumstances, The petitioner has admitted the signature found in the cheque. Therefore, it is for him to prove under what circumstances he has signed and given a cheque. It is for the revision petitioner to rebut the presumption under Section 139 of Negotiable Instruments Act and not by way of getting an expert opinion. Even otherwise getting expert opinion is not conclusive proof. It is only a piece of evidence. Under there circumstances, when the petitioner himself has not denied the signature found in the cheque, there is no need to send the cheque for expert opinion. He has not stated any reason as to why he has not filed this application even before the complainant coming to the box. After evidence of the complainant, when the matter was posted for http://www.judis.nic.in 5 defense witness, only at that time, he has filed this petition. Therefore, it shows that he has filed the application only to protract the case. This Court does not find any justification in the application filed by the petitioner at the fag end of the trial. Under these circumstances, there is no merit in the revision and there is no ground made out to interfere with the order passed by the learned Magistrate.
8. From the above, it is very clear that the petitioner herein, who is accused, was only attempting to drag on the proceedings under the pretext of filing petition under Section 45 of Indian Evidence Act and therefore, the trial Court has rightly dismissed the petition as it devoid of merits. This Court does not think that the said order requires interference of this Court and therefore the present criminal revision is devoid of any merits and the same is dissmised. Consequently, connected Miscellaneous Petitions are closed.
Sbn 18.02.2019
Index – Yes/No
http://www.judis.nic.in
6
P.VELMURUGAN.J
sbn
To
1.The learned Judicial Magistrate No.II,
Judicial Magistrate No.II court,
Pollachi, Coimbatore.
2. The Public Prosecutor,
High Court of Madras.
Crl.R.C.No.221 of 2019 and
Crl.M.P.Nos.2330 & 2333 of 2019
Date: 18.02.2019
http://www.judis.nic.in