Bombay High Court
Anup S/O. Niranjan Dodiya vs Shailendra S/O. Narayanji Vyas on 2 May, 2023
Author: G. A. Sanap
Bench: G. A. Sanap
16.apl.1498.2022 judge.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO.1498 OF 2022
Anup S/o. Niranjan Dodiya,
Aged 37 Yrs., Occ.: Business,
R/o. 1st Floor, Rajurkar Compound,
Tilak Road, Akola, Tq. and Dist. Akola .... APPLICANT
// V E R S U S //
Shailendra S/o. Narayanji Vyas,
Aged Adult, Occ.: Business,
Proprietor Bhagwati Construction,
R/o. Dev-Chaya, Professor Colony,
Ranpise Nagar, Akola
Tq. & Distt. Akola ... NON-APPLICANT
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Mr V. R. Deshpande, Advocate for the applicant
Mr Abdul Subhan, Advocate for non-applicant
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CORAM : G. A. SANAP, J.
DATE : 02/05/2023 ORA L JUDGMENT :
1 Heard.
2 ADMIT. Heard finally with the consent of learned Advocates for the parties.
3 In this application, filed under Section 482 of the ::: Uploaded on - 11/05/2023 ::: Downloaded on - 19/06/2023 19:45:25 :::
16.apl.1498.2022 judge.odt 2 Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C.'), challenge is to the judgment and order dated 25.08.2022 passed by the learned Additional Sessions Judge, Akola in Criminal Revision Application No. 177 of 2018, whereby the learned Judge dismissed the revision holding that it was not maintainable. The challenge is also to the order dated 19.09.2018 passed by the learned Judicial Magistrate First Class, Court No. 11, Akola whereby the learned Magistrate was pleased to allow the application Exh. 21 made by the non-applicant for sending the disputed cheque for examination by the handwriting expert.
4 The facts are as follows:
The parties in this judgment would be referred by their nomenclature in the complaint. The applicant is the original complainant. The non-applicant is the accused. In the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N. I. Act') after taking cognizance the learned Magistrate issued the process against the accused. The complaint is based on the dishonor of ::: Uploaded on - 11/05/2023 ::: Downloaded on - 19/06/2023 19:45:25 :::
16.apl.1498.2022 judge.odt 3 cheque of Rs.5,00,000/- issued by the accused. The complainant has filed his affidavit of examination-in-chief. 5 The accused made an application at Exh. 21 and prayed before the Magistrate to refer the cheque in question to the handwriting expert for his opinion as to the date of the cheque and the signature made below the date. It is the case of the accused that initially the cheque was issued on 04.05.2017. He did not extend the period of cheque. The date of the cheque was changed as '02.08.2017'. Below the said changed date his signature was forged and fabricated. It is his case that he never extended the date of the cheque. In order to bring the cheque within limitation the change of the date and his signature have been forged and fabricated by the complainant. It is further stated that on receipt of the notice from the complainant before filing the complaint he had specifically objected for this change of the date and his signature. It is his case that the changed date is not in his handwriting. Similarly, below the change he has not made the signature. According to him, the change in the date and his signature have been forged and ::: Uploaded on - 11/05/2023 ::: Downloaded on - 19/06/2023 19:45:25 :::
16.apl.1498.2022 judge.odt 4 fabricated. He, therefore, prayed before the learned Magistrate that in order to effectively and meaningfully defend himself the report of the handwriting expert would be necessary. It is submitted that the accused is required to rebut the presumption. It is submitted that in order to effectively and meaningfully cross examine the complainant the report of the handwriting expert is necessary. 6 The application Exh. 21 was opposed by the complainant. It is contended that considering the stage of the matter the application was not maintainable. The stage of leading the defence evidence would arrive after recording the statement of the accused under Section 313 of the Cr.P.C. The complainant has filed his affidavit of examination-in-chief on record. The application, according to the complainant, has been made to delay the matter. 7 Learned Magistrate on consideration of the facts and circumstances found that the application was full of substance and accordingly he allowed the same. Being aggrieved by this order, the complainant preferred a revision in the Sessions Court, Akola.
Learned Additional Sessions Judge on the ground of maintainability ::: Uploaded on - 11/05/2023 ::: Downloaded on - 19/06/2023 19:45:25 :::
16.apl.1498.2022 judge.odt 5 of revision dismissed the same. The complainant is, therefore, before this Court.
8 I have heard Mr V. R. Deshpande, learned Advocate for the complainant and Mr. Abdul Subhan, learned Advocate for the accused. Perused the record and proceeding. 9 Learned Advocate for the complainant submitted that in view of the dismissal of the revision on the ground of maintainability this Court may, in exercise of powers under Section 482 of the Cr.p.C., examine the correctness of the order passed by the learned Magistrate. Learned Advocate submitted that the right of accused to make such an application would arise when he is called upon to enter upon his defence evidence. Learned Advocate submitted that in terms of section 254 of the Cr.P.C. such stage is not contemplated to allow the accused to make an application seeking such order. Learned Advocate submitted that the order passed by the learned Magistrate would cause prejudice to the complainant because in case of positive report, the entire claim of the complainant would be defeated. Learned Advocate submitted ::: Uploaded on - 11/05/2023 ::: Downloaded on - 19/06/2023 19:45:25 :::
16.apl.1498.2022 judge.odt 6 that therefore the complainant needs to be granted an opportunity to prove the cheque by adducing the evidence. Learned Advocate submitted that the order passed by the Magistrate for sending the cheque to the handwriting expert can be kept in abeyance till recording of the statement of the accused under Section 313 of the Cr.P.C. Learned Advocate submitted that after recording of statement the accused would be free to execute this order. Learned Advocate has placed reliance on two decisions i.e. Quepem Urban Co-operative Credit Society .v/s. Seby Noronha and Anr.1 and Shri Prakash Sevantilal Vora .v/s. The State of Maharashtra and Anr. 2 to substantiate his submission that such right can be exercised by accused once he is called upon to enter upon his defence. Learned Advocate has also placed reliance upon Section 243 of the Cr.P.C. to substantiate this submission.
10 Learned Advocate for the accused submitted that in order to ensure his right of a fair trial, he cannot be denied an opportunity to place on record his defence. Learned Advocate 1 2018 (6) Mh.L.J. 263 2 2011 Cri.L.J. 2207 ::: Uploaded on - 11/05/2023 ::: Downloaded on - 19/06/2023 19:45:25 :::
16.apl.1498.2022 judge.odt 7 submitted that the positive report from the handwriting expert by itself will not nonsuit the complainant. The complainant would be required to prove the contents of the cheque by leading proper evidence. Learned Advocate submitted that the accused in reply to the notice had specifically contended that he did not extended the date of the cheque and the signature below the date was not made by him. It is his specific contention that the date and signature were forged and fabricated. Learned Advocate submitted that in this case Section 254 of the Cr.P.C. would become applicable and therefore, learned Magistrate in order to ensure the fair trial to the complainant and accused exercised the discretion and allowed the application. Learned Advocate submitted that the application made by the accused is consistent with his defence throughout. Learned Advocate further submitted that the proposition in the decisions relied upon by the learned Advocate for the complainant is of no help and assistance to the case of the complainant on facts. 11 In order to appreciate the submission I have perused the decisions relied upon by the learned Advocate for the ::: Uploaded on - 11/05/2023 ::: Downloaded on - 19/06/2023 19:45:25 :::
16.apl.1498.2022 judge.odt 8 complainant. In the case of Quepem (supra) there was no dispute about the signature of the drawer on cheque. The accused in that case did not enter into the witness box but made a request for sending the cheque to the handwriting expert. In this factual situation, it was held that the learned Additional Sessions Judge was not right in setting aside the order passed by the learned Magistrate rejecting such application. It is held that in the fact situation the accused could have made an application under Section 243(2) of the Cr.P.C.
12 In the case of Shri Prakash (supra) learned Judge has considered the provisions of Section 243 of the Cr.P.C. and observed as follows:
"The said provision clearly envisages that a fair opportunity has to be given to the accused to set up his defence and, therefore, he has a right to make an application for issuing summons for examining any witness of his choice or for production of any document or thing. However, this right is subject to permission being granted by the Magistrate. The Magistrate is also empowered under sub-clause (2) of section 243 to reject such application if he feels that it is filed for protracting the proceedings.::: Uploaded on - 11/05/2023 ::: Downloaded on - 19/06/2023 19:45:25 :::
16.apl.1498.2022 judge.odt 9
8. By virtue of this provision, therefore, the responsibility is cast on the Magistrate to act in a fair, judicious and yet balanced way to ensure that the accused also gets a fair opportunity of defending the case and, at the same time, also to ensure that this provision is not misused by the accused only for the purpose of protracting the trial or to defeat the ends of justice. This becomes very relevant in a complaint which is filed under section 138 of the Negotiable Instruments Act, which is to be disposed off in a summary manner and as is laid down under section 143(3) of the Negotiable Instruments Act within six months."
13 In this case, before the single Bench the accused had not denied his signature on the cheque. The dispute was with regard to the filling up of the contents of the cheque. There was no allegation of alteration in the form of eraser or over writing or correction in the cheque. The learned Judge, therefore, held that the order rejecting the prayer to send the cheque for handwriting expert was fully justified.
14 It is to be noted that the Court has to ensure that the trial is fair for the complainant as well as the accused. The Court can ensure a fair trial to both the parties by granting them an opportunity to substantiate their respective contentions. In the ::: Uploaded on - 11/05/2023 ::: Downloaded on - 19/06/2023 19:45:25 :::
16.apl.1498.2022 judge.odt 10 given case both the parties namely the complainant and accused may feel the necessity of referring the disputed signature to the handwriting expert. It is to be noted that the disputed question needs to be addressed and decided on the basis of cogent evidence. The cogent evidence in the form of the opinion of the handwriting expert as to the disputed signature or handwriting can guide the Court to adjudicate upon the disputed issue. The Court in order to ensure the fair trail to both the parties must see that the reasonable opportunity is not denied either to the complainant or to the accused to substantiate their respective contentions. It is true that under the guise of referring an undisputed signature to the handwriting expert, attempt can be made to obtain the order. In my view, such attempt needs to be thwarted at the very inception. The Court, therefore, has to judge the issue in the facts and circumstances of each and every case. There cannot be any hard and fast rule or straight jacket formula. The facts and circumstances brought on record, in my view, must therefore be the most prominent and determinative factor.
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16.apl.1498.2022 judge.odt 11 15 In this case, the accused has not denied the issuance of cheque dated 04.05.2017. He has also admitted his signature being drawer of the cheque, but what he has not admitted is the change of the date of the cheque and the signature below the change or correction of the date. It is his contention that the date is not in his handwriting. Similarly, the signature below corrected date is not his signature. It is his defence that the date and his signature is forged and fabricated just for the purpose of bringing the cheque within limitation. This defence was disclosed at first opportunity in reply to the notice, received from the complainant. It is the case of the complainant that, as agreed between him and the accused, the accused in his handwriting extended the date as well as made the signature below the corrected date. The main issue in this case is with regard to the extension of the date of the cheque and the corrections made therein. The parties would be required to lead the evidence to substantiate their rival contentions. 16 It therefore goes without saying that the accused has not taken the complainant by surprise by making this application. ::: Uploaded on - 11/05/2023 ::: Downloaded on - 19/06/2023 19:45:25 :::
16.apl.1498.2022 judge.odt 12 This defence of the accused was known to the complainant. In the fact situation, the question is as to how the Court can ensure the sufficient opportunity to the accused to substantiate his defence and thereby, ensure fair trial to him. The stage to disclose the defence would arise at the time of the cross examination of the complainant. The accused without report of the handwriting expert can put his defence in terms of suggestions to the complainant. But, if the accused is armed with the report of the handwriting expert one way or the other he can effectively and meaningfully exercise his right of cross examination. If the report of the handwriting expert is in his favour then he would be able to effectively and meaningfully cross examine the complainant. Similarly, if the report of the handwriting expert is not in favour of the accused then it would benefit the complainant. The complainant would not be required to wait for the fruits of this litigation. Learned Magistrate has therefore taken into consideration the disputed facts, the stage of the matter and the purpose of the exercise undertaken by the accused. In my view, in the fact situation, learned Magistrate was right in granting the application.
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16.apl.1498.2022 judge.odt 13 17 Learned Advocate for the complainant submitted that the grant of prayer would frustrate the very purpose of filing of the complaint and examination of witnesses. Learned Advocate submitted that the order passed by the Magistrate can be kept in abeyance till recording of the statement of the accused under Section 313 of the Cr.P.C. Learned Advocate in all fairness not disputed the right of the accused to make such an application. But, according to him this right would become available at the stage of his defence evidence. In my view, this submission cannot be accepted for more than one reason. First and foremost, the power of the Magistrate to consider such an application is incidental and ancillary to the power of conducting trial. Without such ancillary and incidental powers it would not be possible for the Magistrate to take care of such vital and important issues.
18 In this case, now the cheque is in the custody of the complainant. The accused has no control over it. If the cheque had been in possession of the accused he would have, without obtaining order from the Court, obtained the opinion of ::: Uploaded on - 11/05/2023 ::: Downloaded on - 19/06/2023 19:45:25 :::
16.apl.1498.2022 judge.odt 14 handwriting expert and produced the same in the Court. In this case, he cannot do it because the cheque is part of a case which is sub judice before the learned Magistrate. In the fact situation, the only remedy available to him was to apply before the Magistrate and seek redressal of his grievance. It is to be noted that the exercise of powers in such a situation, in my view, would fall within the discretion of the Magistrate. The only thing the Magistrate has to ensure is that such discretion is judiciously exercised. The exercise of discretion must be to subserve the purpose of justice and not to deny the justice.
19 In my view, in this case, the report of the handwriting expert would serve the purpose and assist the Magistrate to adjudicate upon the issue in one round of litigation. In the fact situation, calling upon the accused to cross examine the complainant and his witnesses without insisting for the opinion of the handwriting expert would be nothing short of denial of an opportunity to effectively and meaningfully cross examine the complainant. The complainant, in the fact situation, must be ::: Uploaded on - 11/05/2023 ::: Downloaded on - 19/06/2023 19:45:25 :::
16.apl.1498.2022 judge.odt 15 confident of his case. Therefore, in the facts and circumstances, in my view the facts of the decisions relied upon by the learned Advocate for the complainant and the facts of this case are totally different. The decisions are not applicable to this case. I do not see any substance in the application. The same deserves to be dismissed.
20 In view of above, the criminal application stands dismissed.
(G. A. SANAP, J.) Namrata ::: Uploaded on - 11/05/2023 ::: Downloaded on - 19/06/2023 19:45:25 :::