Madhya Pradesh High Court
Vijay Kant Shrivastav vs The State Of Madhya Pradesh on 5 October, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.Cr.C. No.40620/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 05th OF OCTOBER, 2023
MISCELLANEOUS CRIMINAL CASE No.40620 of 2023
BETWEEN:-
VIJAY KANT SHRIVASTAV S/O LATE K.L.
SHRIVASTAV, AGED ABOUT 57 YEARS,
OCCUPATION: BUSINESSMAN R/O 83,
SHUBHALAY PARISAR, MISROD BHOPAL
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI AJAY GUPTA - SENIOR ADVOCATE WITH
MS. SAKSHI PAWAR - ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION RATIBAD (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI MOHAN SAUSARKAR - PUBLIC PROSECUTOR)
.........................................................................................................
This application coming on for admission this day, the court passed
the following:
ORDER
This application under Section 482 of Cr.P.C. has been filed seeking following reliefs:-
"A. To quash the charge sheet and consequential proceedings arising out of FIR No.414/2020 registered at Police Station Ratibad, Bhopal against the Applicant in the larger interest of justice.
B. To grant any other relief which this Hon'ble Court may deem fit in the interest of Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Oct-23 5:38:12 PM 2 M.Cr.C. No.40620/2023 justice equity and fair-play."
2. It is the case of petitioner that FIR bearing Crime No.414/2020 was registered at Police Station Ratibad on the complaint filed by one Yogendra Maheshwari against two persons namely, Chander Patidar and Rakeeb Khan for alleged offence under Sections 420, 467, 468, 471, 120B and 109 of IPC. In the light of confessional statement made by one of the co-accused namely, Chander Patidar to the effect that property in question was transferred to him by gift deed executed by applicant, applicant was arrested on false and vexatious charges for offence under Sections 420, 467, 468, 471, 120B and 109 of IPC. Applicant had denied the execution of such gift deed and accordingly, disputed documents along with admitted signatures of applicant were sent to handwriting expert. Before report from handwriting expert could be received, charge-sheet was filed and applicant was sent for trial before the Magistrate on the basis of surmises and conjectures. Applicant filed an application on 15/09/2021 seeking adjournment of the case till the report from handwriting expert is received. However, said application was rejected on the same day. On 06/01/2022, applicant filed an application for discharge under Section 227 of Cr.P.C., however, said application was rejected and on 09/11/2022, Trial Court framed charges against applicant for alleged offence under Sections 471 and 120B of IPC. Thereafter, report from handwriting expert has been received in which it has been opined that the disputed signature and handwriting is not in the handwriting and signature of applicant. Accordingly, applicant moved an application for his discharge/acquittal on the basis of report of handwriting expert. However, by impugned order dated 17/02/2023, said application has been rejected on the ground Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Oct-23 5:38:12 PM 3 M.Cr.C. No.40620/2023 that once the charges have been framed then there is no provision for acquittal or discharge under Section 232 of Cr.P.C. and Trial Court continued with the examination of witnesses.
3. It is submitted by counsel for applicant that once the allegations of preparing a forged gift deed were found incorrect in the light of report of handwriting expert, then there is no need for applicant to undergo the ordeal of trial and thus, the Trial Court should have allowed the application filed by applicant.
4. Per contra, application is vehemently opposed by counsel for the State. It is submitted that once trial has crossed the stage of framing of charges, then there is no provision for discharge or acquittal of the applicant and thus, the Trial Court did not commit any mistake by rejecting the application.
5. Heard learned counsel for the parties.
6. The Supreme Court in the case of Adalat Prasad Vs. Rooplal Jindal and others reported in AIR 2004 SC 4674 has held that after taking cognizance of offence, the Court cannot recall the said order of cognizance in absence of any review power or inherent power with the sub-ordinate Criminal Courts, as the only remedy lies for invoking inherent power under Section 482 Cr.P.C. and the judgment passed by Supreme Court in the case of K.M. Mathew Vs. State of Kerala reported in AIR 1992 SC 2206 was over-ruled.
7. Thus, the Trial Court did not commit any mistake by rejecting the application filed by applicant for his acquittal / discharge.
8. Now the only question for consideration is as to whether the report of handwriting expert is sufficient to quash the prosecution of applicant or not?
9. The Supreme Court in the case of Padum Kumar Vs. State of Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Oct-23 5:38:12 PM 4 M.Cr.C. No.40620/2023 Uttar Pradesh reported in (2020) 3 SCC 35 has held as under:-
14. The learned counsel for the appellant has submitted that without independent and reliable corroboration, the opinion of the handwriting experts cannot be relied upon to base the conviction. In support of his contention, the learned counsel for the appellant has placed reliance upon S. Gopal Reddy v. State of A.P., (1996) 4 SCC 596 : 1996 SCC (Cri) 792, wherein the Supreme Court held as under: (SCC pp. 614-15, para 28) "28. Thus, the evidence of PW 3 is not definite and cannot be said to be of a clinching nature to connect the appellant with the disputed letters. The evidence of an expert is a rather weak type of evidence and the courts do not generally consider it as offering "conclusive" proof and therefore safe to rely upon the same without seeking independent and reliable corroboration. In Magan Bihari Lal v. State of Punjab, (1977) 2 SCC 210 : 1977 SCC (Cri) 313, while dealing with the evidence of a handwriting expert, this Court opined: (SCC pp. 213-14, para 7) '7. ... we think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Oct-23 5:38:12 PM 5 M.Cr.C. No.40620/2023 of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U.P., AIR 1957 SC 381 :
1957 Cri LJ 559 that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad Misra v. Mohd. Isa, AIR 1963 SC 1728 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529 where it was pointed out by this Court that an expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Oct-23 5:38:12 PM 6 M.Cr.C. No.40620/2023 whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P., AIR 1967 SC 1326 : 1967 Cri LJ 1197 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial.'"
15. Of course, it is not safe to base the conviction solely on the evidence of the handwriting expert.
As held by the Supreme Court in Magan Bihari Lal v. State of Punjab, (1977) 2 SCC 210 : 1977 SCC (Cri) 313 that: (SCC p. 213, para 7) "7. ... expert opinion must always be received with great caution ... it is unsafe to base a conviction solely on expert opinion without substantial corroboration.
This rule has been universally acted upon and it has almost become a rule of law."
16. It is fairly well settled that before acting upon the opinion of the handwriting expert, prudence requires that the court must see that such evidence is corroborated by other evidence either direct or circumstantial evidence. In Murari Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Oct-23 5:38:12 PM 7 M.Cr.C. No.40620/2023 Lal v. State of M.P., (1980) 1 SCC 704 : 1980 SCC (Cri) 330, the Supreme Court held as under:
(SCC pp. 708-09, paras 4 and 6) "4. ... True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses -- the quality of credibility or incredibility being one which an expert shares with all other witnesses -- but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of fingerprints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Oct-23 5:38:12 PM 8 M.Cr.C. No.40620/2023 to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty "is to furnish the Judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the Judge to form his own independent judgment by the application of these criteria to the facts proved in evidence [Vide Lord President Cooper in Davis v. Edinburgh Magistrate, 1953 SC 34 quoted by Professor Cross in his evidence].
5. * * *
6. Expert testimony is made relevant by Section 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person "specially skilled" "in questions as to identity of handwriting" is expressly made a relevant fact. ...
So, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion.
But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard-and-fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Oct-23 5:38:12 PM 9 M.Cr.C. No.40620/2023 other relevant evidence and decide finally to accept or reject it."
10. Thus, it is clear that the opinion of expert is not conclusive and it has to be received with great caution for the reason that all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. Therefore, it has been held that report of handwriting expert is rather a weak type of evidence and therefore, it is not safe to rely upon the same without seeking independent and reliable corroboration. Therefore, contention of the applicant that since applicant has been exonerated by handwriting expert, therefore report of handwriting expert should be considered as a conclusive proof of his innocence, cannot be accepted. Petitioner has not filed a copy of charge-sheet to show the material which was otherwise collected by prosecution against the applicant. Even applicant has not challenged the order framing charges.
11. Since report of handwriting expert is not conclusive and it is a weak type of evidence, therefore this Court is of the considered opinion that prosecution of applicant cannot be quashed merely on the ground that report of handwriting expert exonerates the applicant.
12. Next question for consideration is as to whether prosecution can deny or disown the report of handwriting expert or not?
13. It is well established principle of law that if an un-exhibited prosecution document is in favour of accused, then the same can be relied upon by the accused to prove his innocence and according to applicant, report of handwriting expert has been filed by prosecution itself. However, it is sufficient to mention that in absence of any material to show that there is no other evidence against the applicant, it is difficult for this Court to quash the proceedings/ charge-sheet/ Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Oct-23 5:38:12 PM 10 M.Cr.C. No.40620/2023 criminal trial pending against the applicant.
14. It is well established principle of law that the legitimate prosecution should not be quashed thereby killing an unborn child.
15. Accordingly, application fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE Shubhankar Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Oct-23 5:38:12 PM