Karnataka High Court
Mr.Gavisiddeshwara Lhiremath vs Mr.Sanjeev Basavarajappa Karadakal on 25 September, 2019
Equivalent citations: AIRONLINE 2019 KAR 1735, 2020 (1) AKR 1
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25 T H DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL PETITION NO.100407 OF 2019
BETWEEN
MR.GAVISIDDESHWARA HIREMATH,
S/O.CHANDRASHEKHARAYYA HIREMATH,
AGE: 57 YEARS, OCC: BUSINESS,
R/O.: OPP. TO SRI.MATHA HOTEL,
"GAVISIDDESHWARA KHANAVALLI"
HOSPET ROAD-KOPPAL.
... PETITIONER
(BY SRI.NEELENDRA D. GUNDE, ADVOCATE)
AND
MR.SANJEEV BASAVARAJAPPA KARADAKAL,
AGE: 50 YEARS, OCC: BUSINESS,
R/O: WARKAR STREET-KOPPAL-582114.
... RESPONDENT
(BY SRI.M.B.GUNDAWADE, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 OF CR.P.C., PRAYING TO CALL FOR THE
RELEVANT RECORDS, SET ASIDE THE ORDER PASSED
BY THE PRL. CIVIL JUDGE AND JMFC, KOPPAL IN C.C.
NO.709/2014 DATED 08.02.2019 THEREBY
REJECTING THE APPLICATION FILED UNDER SECTION
45 & 73 OF INDIAN EVIDENCE ACT FILED BY THE
PETITIONER AND CONSEQUENTLY ALLOW THE SAID
APPLICATION.
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THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This petition is filed by the petitioner under Section 482 of Cr.P.C., challenging the order passed by the Court of the Principal Civil Judge and J.M.F.C., Koppal in C.C.No.709/2014 dated 08.02.2019, whereby the trial Court had rejected the application filed by the petitioner being arraigned as accused under Sections 45 and 73 of the Indian Evidence Act, 1872.
2. Heard the learned counsel for the petitioner and the learned counsel for the respondent.
3. The factual matrix of the case are that the petitioner said to be an accused in C.C.No.709/2014, whereby he is facing up of trial for the offence punishable under Section 138 of N.I. Act, alleging that he had issued a cheque at :3: Ex.P1 in a sum of Rs.8,00,000/- in order to repay the loan amount. The cheque has been presented by the respondent-complainant for encashment, but the said cheque was dishonoured with an endorsement "insufficient funds in the account of the account holder". Subsequently the respondent-complainant initiated the proceedings against the accused for the offence punishable under Section 138 of N.I. Act. Subsequent to initiation of the proceedings in C.C.No.709/2014, the complainant has examined himself as PW1 and was also marked several documents in order to prove the guilt of the accused for the aforesaid offence. After closure of the evidence on the parts of the complainant, the case was set down for recording the incriminating statement as contemplated under Section 313 of Cr.P.C. and subsequent to recording statement, the case has been set down for defene evidence. In the meanwhile of the proceedings between the :4: complainant and the accused in C.C.No.709/2014, the petitioner filed an application under Sections 45 and 73 of the Indian Evidence Act seeking to refer Ex.P1-Cheque for scientific investigation to ascertain the age of ink found on the cheque. As this contention was taken by the petitioner- applicant before the trial Court; the Prl. Civil Judge and JMFC, Koppal was heard the arguments advanced by the learned counsel for the petitioner-applicant therein and so also the learned counsel for the respondent-complainant and took erroneous view of the facts and circumstances of the case that the application filed by the applicant under Section 45 and 73 of the Indian Evidence Act, came to be dismissed by its order dated 08.02.2019. The Court below has not been assigned justifiable reasons for rejection of the application filed by the applicant-accused; and also observed that when the petitioner has admitted the signature, the opinion report is not :5: required. Being aggrieved by the impugned order, the petitioner-accused preferred this petition under Section 482 of Cr.P.C. seeking to set aside the order passed by the trial Court.
4. Whereas the learned counsel for the petitioner namely Shri Neelendra D.Gunde has taken me through the sum and substance of the complaint filed by the complainant against the accused for the very initiation of the proceedings in C.C.No.709/2014 relating to bouncing of a cheque and also facing up of trial for the offence punishable under Section 138 of N.I. Act, but the Court below while passing the impugned order, which has been challenged in this petition has not been considered the adjudication in between the complainant and the accused relating to the age of ink found on the disputed cheque at Ex.P1 and so also its contents, if that application is not been considered, certainly resulting in miscarriage of :6: justice to the petitioner-accused. The Court below has dismissed the application filed by the accused on the ground that the signature found on the cheque is admitted and then the opinion of the expert is required, but Sections 45 and 73 of the Indian Evidence Act, it is relating to receipt of opinion report in the disputed document and also verifying the same, comparison of the signature and its contents then only the trial Court has to proceed with the case for appreciation of evidence put forth either of the parties. But in the instant case, the complainant, who had initiated the proceedings against the accused in C.C.No.709/2014 and moreover the complainant is requires to establish the case against the accused beyond all reasonable doubt for securing the conviction. Therefore, the document at Ex.P1- cheque is requires to be referred to the hand writing expert to ascertain the age of ink, :7: signature and other contents found on the cheque.
5. Lastly, the learned counsel for the petitioner submits that even though the application filed by the petitioner-accused under Sections 45 and 73 of the Indian Evidence Act, dismissed by the trial Court is not sustainable and also erroneously given a finding. Therefore, in this petition interference is required to the impugned order passed by the trial Court in C.C.No.709/2014 of having rejected the application filed by the applicant-accused under Sections 45 and 73 of the Indian Evidence Act. Even to the extent of technicality of filing the application under Sections 45 and 73 of the Indian Evidence Act, there is a scope for filing the application by the applicant, supposed to be either of parties in a proceedings initiated; but in the instant case, an application under Sections :8: 293(1) and 293(4)(c) of Cr.P.C., the disputed document i.e., Ex.P1-cheque is requires to be referred to the hand writing expert in order to ascertain the age of the ink and so also the contents of writing on the cheque. The same is requires to be examined by the experts and issue opinion report and that the report is requires to placing in a case of the complainant or in a case of the accused in order to prove the guilt of the accused under Section 138 of N.I. Act and otherwise to say the complainant even though is prosecuting the case against the accused and he shall produce the documentary evidence and so also oral evidence to prove the guilt of the accused beyond all reasonable doubt. Unless to secure the opinion report from the concerned hand writing expert it is difficult to come to conclusion that the age of the ink and the contents found on the disputed cheque at Ex.P1 for arrival of proper conclusion, whether case has :9: been proved by the complainant in order to prosecute the case against the accused for the offence punishable under Section 138 of N.I. Act. These are all the contentions taken by the learned counsel for the petitioner and seeking intervention of the impugned order passed by the Court below in C.C.No.709/2014, dated 08.02.2019 for having rejected the application filed by the applicant-accused under Sections 45 and 73 of the Indian Evidence Act and consequent upon to consideration of this petition, by setting aside impugned order passed by the trial Court and also to consider the application filed by the applicant-accused in the interest of justice. These are all the contentions taken by the learned counsel for the petitioner and sought to allow the petition filed under Section 482 of Cr.P.C.
6. On the other hand, the learned counsel for the respondent Shri M.B.Gundawade, who has : 10 : taken me through the evidence adduced by the respondent-complainant. subsequent to complying with the stipulated conditions as contemplated under Section 138 of N.I. Act and so also the receipt of reply notice given by the accused and the complainant adduced the evidence in order to prove the guilt of the accused and also got marked Ex.P1-cheque issued by the accused in order to repay the loan amount, the accused has admitted his signature on the cheque at Ex.P1. But the accused had filed an application under Sections 45 and 73 of the Indian Evidence Act for seeking to refer the said cheque at Ex.P1 for scientific investigation to ascertain the age of ink. Therefore, no interference is called for to the impugned order passed by the Court of Prl. Civil Judge and JMFC, Koppal in C.C.No.709/2014 for having rejected the application filed by the applicant-accused under Sections 45 and 73 of the Indian Evidence Act. The trial Court has : 11 : assigned the justifiable reasons to reject the said application filed by the applicant said to be an accused, but the disputed cheque at Ex.P1 even though it has been referred to the hand writing expert only for securing the opinion report as he being an expert, but the accused himself has admitted the cheque, contents on the cheque and also the age of ink during the course of trial and otherwise to say, the complainant said to prosecute the case against the accused. Therefore, in this petition, does not arise for call for any interference of the impugned order passed by the Court below for having rejected the application filed by the applicant-accused under Sections 45 and 73 of the Indian Evidence Act. The Court below has assigned justifiable reason and therefore, the impugned order does not arise for call for any interference even though various grounds have been urged by the learned counsel for the petitioner in this petition. These are all : 12 : the contentions taken by the learned counsel for the respondent-complainant and seeking for rejection of the petition filed by the petitioner by confirming the order passed by the Court below in C.C.No.709/2014, dated 08.02.2019 thereby rejected the application filed by the applicant- accused under Sections 45 and 73 of the Indian Evidence Act.
7. It is in this backdrop of the contention as taken by the learned counsel for the petitioner, which is stated supra and so also the counter made by the learned counsel for the respondent relating to scope and object of Sections 45 and 73 of the Indian Evidence Act, it is relevant to state that the accused had issued a cheque of Ex.P1, relating to the transaction took in between the complainant and the accused and accused has borrowed the loan of Rs.80,000/- from the complainant and issued blank signed : 13 : cheque to the complainant. Therefore, the accused did not dispute the issuance of cheque, but he has disputed the age of the ink and contents found on the cheque at Ex.P1, the accused has only denied the factum of the amount and the said cheque issued by the accused in the year 2011 and the contents found on Ex.P1 which is alleged to have been written in the year 2014. Therefore, there is necessity to examine the age of the ink used in the said cheque at Ex.P1 though the accused has been subjected to trial for the offence under Section 138 of the N.I. Act. But the disputed cheque at Ex.P1 is requires to be referred to the handwriting expert as contemplated under Section 293(1) (4) (c) of the Code of Criminal Procedure, which reads as under:
293. Reports of certain Government scientific experts. - (1) Any document p urporting to be a report und er the hand of a Government scientific : 14 : exp ert to whom this section app lies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any p roceeding under this Code, may be used as evid ence in any inq uiry, trial or other p roceed ing und er this Code.
(4) This Section applies to the
following Government scientific experts,
namely:-
(c) the Director of the Finger Print
Bureau;
Similarly, it is required to refer Section 45 and Section 73 of the Indian Evidence Act, 1972 which reads as thus:
45. Opinions o f experts.--When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger imp ressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to : 15 : identity of handwriting or finger imp ressions are relevant facts.
Such persons are called exp erts.
73. Comparison of signature, writing or seal with others admitted or proved.--In ord er to ascertain whether a signature, writing or seal is that of the person by whom it p urports to have b een written or mad e, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or mad e by that p erson may be comp ared with the one which is to be proved , although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any p erson present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleg ed to have been written by such p erson. This section applies also, with any necessary modifications, to finger-impressions.
8. The accused alleged to issue cheque at Ex.P1 and the when the said cheque presented by : 16 : the complainant for encashment in the Bank, the same was returned with an endorsement issued by the Bank as 'funds insufficient in the account of the account holder'. Subsequently, the pre-cognizance arise to the complainant to apply the stipulated condition as under Section 138 of the N.I. Act and initiated the proceedings against the accused in C.C.No.709/2014. The accused who has putting appearance in that case and subsequent to the evidence let-in by the complainant and also got marked certain documents in order to prove the guilt of the accused and even subsequent to recording the 313 statement of the accused and thereafter the case has been set down for the defence evidence. During defence evidence, the accused who has filed an application under Section 45 and 73 of the Indian Evidence Act for seeking to refer the disputed cheque to ascertain the age of the ink and contents found on Ex.P1 from the chemical : 17 : examiner or otherwise to say the handwriting experts. But the application filed by the applicant-accused came to be dismissed by the Court below. The said impugned order has been challenged under this petition by urging the various grounds.
9. Section 73 of the Indian Evidence Act, 1872 relates to comparison of signature, writing or seal with others admitted or proved. However, it is a power vested with the Court of law to consider and decide the matter by sending the disputed cheque for experts' opinion or not. It is relevant to refer the judgment of Patna High Court in the case of Khushboo Sharivastava, D/o. Sri Mohan Prasad Shrivastava vs. the Union of India (UOI) Through the Secretary, Human Resources Department, Govt. of India and others reported in 2009 (1) PLJR 867. Ultimately the Judge will be an expert apart from : 18 : other experts or an expert of the expert or Court is an expert of experts in concluding the matter by taking the decision after considering the entire facts of the case, as keeping in view the scope and object of Section 73 of the Indian Evidence Act, 1872.
10. In the instant petition, the petitioner is arraigned as accused in C.C. No.709/2014, wherein he is facing up the trial for the offence punishable under Section 138 of the N.I. Act. However, the respondent-complainant having a responsibility to prove the guilt of the accused by producing the cogent and corroborative evidence in order to secure the conviction whatever the offence has been faced by the accused and also put on trial. But Sections 45 and 73 of the Act, 1872, it is referred relating to the opinion report secured by the competent person otherwise to see an expert relating to the disputed cheque at : 19 : Ex.P-1 subjected for examination and to give the opinion report regarding the age of ink. But the said application came to be rejected by the Court below in C.C. No.709/2014 and the same has been challenged under this petition by urging the various grounds. The same has been referred supra. Mere because technically the provision has been quoted by the applicant - accused before the Court below seeking to refer the disputed cheque Ex.P-1 relating to the age of ink, signature and writing found on the cheque, it cannot be a ground to reject the application filed by the applicant-accused, who is arraigned as petitioner herein, but the relevant provision under Sections 293(1) and 293(1)(4)(c) of Cr.P.C. regarding subjecting the disputed cheque for examination or analysis and securing the report under this Court, it may be used as evidence in any enquiry, trial or other proceedings. However, the case in : 20 : C.C.No.709/2014, the accused is required to facing up of a trial for the offences punishable under Section 138 of the N.I. Act. Therefore, the disputed cheque at Ex.P-1, relating to the age of ink, signature and contents found on the said cheque, is required to be examined by the handwriting expert and a report to be secured by the Forensic Science Laboratory. Therefore, it is said that the petition requires to be considered keeping in view the aforesaid relevant provision of Section 293 of Cr.P.C. Based upon the relevant provision of Sections 293(1) and 293(4)(c) of Cr.P.C., having an authority to examine the disputed cheque relating to the age of ink and also signature, contents of writing found on the cheque, which got marked as Ex.P1 in the aforesaid case be adjudicated between the complainant and the accused.
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11. The offence under Section 138 of the N.I. Act even though it is in a quasi judicial in nature; therefore, Section 147 of the N.I. act has been introduced before the proceedings has been ended either in conviction or in acquittal, it is based upon the evidence either documentary or oral evidence has been adduced either of the parties and would close the proceedings that they may make use of the provision of Section 147 of N.I. Act. However, based upon the evidence adduced by the complainant and so also be subjected to test of the witnesses on the parts of the complainant and so also on the parts of the accused, the Trial Court has been appreciated the evidence on record keeping in view Section 3 of the Indian Evidence Act of 1872, if the accused has been convicted for the offence punishable under Section 138 of the N.I. Act then only it shall be termed in a criminal in nature. In this case, the accused is required to facing up of trial : 22 : for the offence under Section 138 of the N.I. Act. Therefore, it is required to consider the application filed by him under Sections 45 and 73 of the Indian Evidence Act.
12. In terms of the aforesaid reasons and findings, it is deemed proper to consider the petition filed by the petitioner - accused and intervention of this Court into the impugned order passed by the Court below for having rejected the application in its order dated 08.02.2019 is called for. Accordingly, I proceed to pass the following:
ORDER
(i) Criminal Petition filed by the petitioner
- accused under Section 482 of Cr.P.C. is hereby allowed.
(ii) The impugned order passed by the Trial Court in C.C. No.709/2014, dated 08.02.2019 is hereby set aside. Consequently, the application filed by the petitioner - accused under Sections : 23 : 45 and 73 of the Indian Evidence Act in C.C. No.709/2014 stands allowed even to the scope and object of Sections 293(1) and 293 (4) (c) of Cr.P.C.
(iii) The consideration of the said application filed by the applicant - accused are concerned, it is relevant to stipulate the condition, such as, the Trial Court in C.C. No.709/2014 shall secure both the complainant and the accused and in their presence, the disputed cheque at Ex.P-1 shall be forwarded to the concerned Forensic Science Laboratory for the purpose of examination or analysis and with a direction to submit the report to the Court in a sealed manner.
(iv) The Trial Court in C.C. No.709/2014 is directed to fix the expenditure on the petitioner - accused for sending the disputed cheque Ex.P-1 for examination or analysis from the concerned : 24 : FSL wherever he desire, as maintained by the Government.
(v) The case in C.C. No.709/2014 is of the year 2014. Therefore, the Trial Court shall expedite the case on merits in accordance with law.
However, it is made clear that whatever the observations made by this Court in this order shall not influence the mind of the Court while disposing of the case and shall be disposed of on merits.
Consequence upon disposal of the main petition, I.A.No.1/2019 does not survive for consideration. Accordingly, stands rejected.
SD/-
JUDGE Vnp*- Paras 1 to 6;
CLK - Paras 7 to end