Madras High Court
P.Ponnusamy vs Saravanan on 5 August, 2019
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
1 Crl.O.P.Nos.18979 and 19123 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.08.2019
CORAM
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
Crl.O.P.Nos.18979 and 19123 of 2017
P.Ponnusamy ...Petitioner in both Crl.O.Ps
-Vs-
Saravanan ...Respondent in both Crl.O.Ps
Common Prayer: Criminal Original petitions filed under Section 482 of Code
of Criminal Procedure, to call for the records pertaining to the order dated
15.02.2017 in C.M.P.Nos.1128 and 1129 of 2015 in C.C.No.289 of 2013 on
the file of Judicial Magistrate, Dharapuram and set aside the same by
allowing these Criminal Original Petitions.
For Petitioner : Mr.N.P.Ponraj
( In both Crl.O.Ps)
For Respondent : Mr.M.Guruprasad
( In both Crl.O.Ps)
COMMON ORDER
These petitions have been filed challenging the order passed by the Court below dismissing the applications filed under Section 91 of Cr.P.C to direct the bank Manager to furnish the account opening form and specimen signature of the petitioner and the petition is filed under Section 45 of Evidence Act, to send a cheque for expert opinion in order to ascertain the signature found in the cheque.
http://www.judis.nic.in 1/7 2 Crl.O.P.Nos.18979 and 19123 of 2017
2.The petitioner is facing trial before the Court below for an offence under Section 138 of Negotiable Instrument Act. The respondent had examined himself as P.W.1 and it is brought to the notice of this Court that P.W.1 was not cross examined by the petitioner. The complaint was taken cognizance in the year 2013. In the year 2015, the petitioner filed two applications under Section 91 of Cr.P.C and under Section 45 of the Indian Evidence Act. These applications were filed on the ground that the signature found in the cheque is not that of the petitioner and the same has been forged. Therefore, the cheque has to be sent for expert opinion to be compared with the specimen signature that is available with the Bank where the petitioner is holding an account.
3.The Court below dismissed the applications mainly on the ground that the petitioner had taken a very specific defence in his reply notice that the cheque was actually issued to one Chinnaswamy and the said cheque has been misused by the respondent by filling all the contents and at the time of giving the reply notice, the petitioner did not question the signature found in the cheque. The Court below also dismissed the applications on the ground that it has been filed only to drag on the proceedings.
4.The learned counsel for the petitioner submitted that even for a naked eye, it can be clearly seen that the signature found in the cheque is a http://www.judis.nic.in 1/7 3 Crl.O.P.Nos.18979 and 19123 of 2017 forged signature. Therefore, the petitioner must be given an opportunity to refute the signature found in the cheque, by getting an expert opinion in that regard. The learned counsel further submitted that since the burden is cast upon the accused persons under Section 139 of Negotiable Instrument Act, the same has to be rebutted and therefore, an opportunity must be given to the petitioner.
5.The learned counsel appearing on behalf of the respondent submitted that the petitioner did not take this stand while he issued the reply notice. The petitioner took a specific stand that the cheque was given to one Chinnaswamy and the said cheque has been misused by the respondent by filling up the cheque and the petitioner never questioned the signature. The learned counsel further submitted that the petitioner has not even cross examined the respondent in this case. Therefore, without cross examining the respondent and developing a defense that the cheque has been forged, the petitioner cannot be permitted to change his defense, which is totally contrary to the stand taken by him in the reply notice.
6. This Court has carefully considered the submissions made on either side and the materials available on record.
7.It will be useful to extract the stand that has been taken by the petitioner in his reply notice:-
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http://www.judis.nic.in 1/7 5 Crl.O.P.Nos.18979 and 19123 of 2017 nkw;go rpd;dr;rhkpapd; kfd; unkc vd;gthplk; v';fsJ fl;rpf;fhuh; U:/5.00.000-? fld;bgw;Ws;sjhft[k;. nkw;go bjhiff;F v';fsJ fl;rpf;fhuh; fhnrhiy mspj;jjhft[k;. nkw;go fhnrhiyahdJ gzkpy;yhky; jpUk;gp te;J tpl;ljhft[k; Twp 20/07/2013?k; njjpapl;L nfhit tHf;fwp"h; K:yk; nkw;go rpd;dr;rhkpna xU mwptpg;g[k.; jdJ kfd; unkc mDg;gpaJ nghy mDg;gpa[s;shh;/ ,itfs; midj;Jk; v';fsJ fl;rpf;fhuiu kpul;o bjhifia gwpf;f ntz;Lk; vd;w bfl;l vz;zj;Jld; nkw;go rpd;dr;rhkpahy; mDg;gg;gl;Ls;sJ vd;W v';fsJ fl;rpfhuh; bjhptpf;fpwhh;/ vdnt j';fsJ fl;rpf;fhuuhd rutzzplk; v';fsJ fl;rpfhuh; ve;jf;fhyj;jpYk; g[nuhnehl;L K:yk; ve;jj;bjhifa[k; fld; bgw;Wf;bfhz;lJ fpilahJ/ mjw;fhf tl;oj;bjhifa[k; ve;jf;fhyj;jpYk; brYj;jpaJk; fpilahJ/ tl;o nghf mry;bjhifahd U:4.00.000-? ve;jf;fhyj;jpYk; fhnrhiyia v';fsJ fl;rpf;fhuh; j';fsJ fl;rpf;fhuUf;F bfhLj;jJ fpilahJ/ ,e;;j eltof;iffs; midj;jpw;Fk; nkw;go rpd;dr;rhkpna gpd;ddpapy; ,Ue;J bfhz;L j';fis bfhz;L ,e;j mwptpg;g[ mDg;gpa[s;sjhf v';fsJ fl;rpfhuh; bjhptpf;fpwhh;/
8.From the above extract made from the reply notice, it is clear that the petitioner had taken a very specific stand that the cheque given to Chinnaswamy has been misused by the respondent.
9.It is also important to note that the petitioner did not cross examine P.W.1 in this case for the reasons best known to him. Therefore, he has not even contradicted P.W.1 on the signature that is found in the cheque. After http://www.judis.nic.in 1/7 6 Crl.O.P.Nos.18979 and 19123 of 2017 nearly two years, the petitioner has chosen to file the applications to send the cheque for an expert opinion. The Court below was right in finding that the petitioner cannot be permitted to a take new defence which was different from the stand taken by him in the reply notice. This Court is not able to find any illegality or infirmity in the order passed by the Court below. There are no grounds to interfere with the same.
10.In the result, these Criminal Original Petitions are dismissed and the Court below is directed to complete the proceedings in C.C.No.289 of 2013, within a period of three months from the date of receipt of copy of this order.
05.08.2019 Index : Yes/No Internet: Yes/No tta To The Judicial Magistrate, Dharapuram http://www.judis.nic.in 1/7 7 Crl.O.P.Nos.18979 and 19123 of 2017 N.ANAND VENKATESH.J., tta Crl.O.P.Nos.18979 and 19123 of 2017 05.08.2019 http://www.judis.nic.in 1/7