Madras High Court
P.K.Sasikumar vs R.Viswanathan on 10 July, 2009
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10.7.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.1849 of 2007 P.K.Sasikumar ... Petitioner vs. R.Viswanathan ... Respondent Petition filed under Section 397 r/w 401 of Cr.P.C. against the order dated 6.11.2007 passed by the Judicial Magistrate No.I, Erode, in Crl.M.P.No.3019 of 2007 in C.C.No.1125 of 2006. For Petitioner : Mr.N.Manokaran For Respondent : Mr.I.C.Vasudevan O R D E R
Animadverting upon the order dated 6.11.2007 passed by the Judicial Magistrate No.I, Erode, in Crl.M.P.No.3019 of 2007 in C.C.No.1125 of 2006, this criminal revision case is focussed.
2.Compendiously and concisely, the relevant facts which are absolutely necessary and germane for the disposal of this criminal revision case would run thus:
(a) The respondent herein filed the complaint in C.C.No.1125 of 2006 as against the revision petitioner herein for the offence under Section 138 of the Negotiable Instruments Act. Inasmuch as the revision petitioner/accused contested the matter, enquiry was commenced, during which, the respondent/complainant was examined as P.W.1. At that stage, it appears, the revision petitioner herein filed the memo expressing his desire to settle the matter. However, after some time, he had a volte face and turned turtle and filed application Crl.M.P.No.3019 of 2007 under Section 45 of the Indian Evidence Act for sending the impugned cheque in this case to the hand writing expert for obtaining opinion concerning the signature. Whereupon, the Court after hearing both sides, dismissed the said petition.
3. Being dissatisfied with the same, this revision is focussed on various grounds, including the one that due opportunity should be given to the accused to get the impugned signature verified by a handwriting expert, as per the dictum of the Honourable Apex Court in JT 2007(1) SC 77 KALYANI BASKAR V. M.S.SAMPORNAM.
4. At the hearing, the learned counsel for the revision petitioner/accused is present and the counsel for the respondent/complaint is absent.
5. The point for consideration is as to whether there is any perversity or impropriety in applying the law by the lower Court, while dismissing the Crl.M.P.
6. The learned counsel for the revision petitioner would reiterate the grounds of revision and submit that opportunity could have been given by the Magistrate.
7. An excerpt from the decision of the Honourable Apex Court, cited supra, is extracted hereunder:
"12. Section 243(2) is clear that a Magistrate holding an inquiry under CrPC 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 handwriting 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 handwriting 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 the 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 CrPC 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) CrPC 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 handwriting 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. In the circumstances, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable."(emphasis supplied) The aforesaid precedent reveals that irrespective of the fact whether the case reached the fag end or not, opportunity could be given, provided there should be some substance in the prayer for taking the assistance of the expert and that it should not be for the purpose of dragging on the matter.
8. Here the perusal of the lower Court order would clearly exemplify and demonstrate that the revision petitioner/accused, who was assisted by a lawyer of his choice, consciously filed the memo for settling the matter, subsequently, alone he had chosen to resile from his commitment and filed the Crl.M.P., which clearly shows that his intention was only to drag on the proceedings. As such, I am of the opinion that no interference with the order of the lower Court is required. Hence, the criminal revision case is dismissed.
msk To The Judicial Magistrate No.I, Erode