Madras High Court
S.P. Muthu vs Kirupakaran on 1 February, 2006
Equivalent citations: I(2007)BC257, 2006(2)CTC585
ORDER M. Jeyapaul, J.
1. As the petitioner and the respondent in both the criminal revision cases are one and the same and the point for determination arising in both the cases is quite similar, the Court has decided to take up both the matters for common disposal.
2. The petitioner, who is an accused for offence under Section 138 of the Negotiable Instruments Act (hereinafter called as the 'Act'), received a verdict of conviction and preferred Criminal Appeal Nos. 7 and 8 of 2005 against C.C. Nos. 10526 and 6886 of 1999 respectively on the file of the learned V Metropolitan Magistrate, Egmore, Chennai.
3. While the said appeals were pending before the Fast Track Court/II Additional Sessions Judge, Chennai, the petitioner in the aforesaid cases filed petitions in Crl.M.P. Nos. 4918 and 4963 of 2005 seeking permission of the Court to send the promissory notes marked in those two cases for expert examination and report of a hand writing expert.
4. The Appellate Court having observed that there was no necessity to send the promissory notes for the examination of an expert as the signatures found in the promissory notes were admitted unambiguously by the petitioner herein during the course of trial chose to dismiss the said petitions.
5. As against those criminal miscellaneous petitions, the present criminal revision cases were filed before this Court.
6. Learned counsel appearing for the petitioner would submit that a cursory look at the promissory notes marked before the trial Court would disclose that the date of alleged execution of those promissory notes has been materially altered. It is his further submission that though the petitioner has not chosen to dispute the said plea that the promissory notes were materially altered, in the interest of justice in order to grant substantial relief to the petitioner, the promissory notes will have to be sent for the scrutiny of an expert.
7. Per contra, learned counsel for the respondent would submit that the question of sending the promissory notes for the opinion of an expert does not arise for consideration inasmuch as the petitioner has unambiguously admitted his signatures on the promissory notes.
8. The petitioner has been prosecuted and punished for an offence under Section 138 of the Act. The criminal proceedings for an offence under Section 138 of the Act is summary in nature. The point that had arisen before the trial Court was whether the dishonoured cheques were issued by the petitioner for the subsisting liability. On a perusal of the testimony of the petitioner herein, it is found that he has admitted in no uncertain terms that he subscribed his signatures to the promissory notes produced before the trial Court. It is not as if the petitioner was taken by surprise. Only on the basis of the promissory notes, the criminal prosecution has been laid alleging that the cheques issued to discharge the promissory note debts bounced on presentation. The whole cross-examination of the complainant and the examination of the petitioner herein had been done only after perusal of the promissory notes.
9. The petitioner who had not whispered anything about the alleged material alteration in the promissory notes before the trial Court when the case was pending for quite a long time, cannot be permitted to take a new stand that the promissory notes themselves were materially altered. Of course, the Appellate Court has every authority to receive additional evidence in order to decide the points in issue, but the Appellate Court cannot entertain a new plea with regard to the factual aspect of the case at the appellate stage. If a new plea with regard to the factual aspect of the case is entertained, there will be no termination for the presentation of the facts before the Court. The defence of material alteration is purely a question of fact. If the petitioner had not raised that issue before the trial Court, he cannot be permitted to raise the same for the first time before the Appellate Court.
10. There is voluminous evidence on record to clinch the issue whether the cheques were issued for subsisting liability or not. The opinion of the expert can only be an opinion evidence.
11. It has been observed by the Hon'ble Supreme Court in Rambhau v. State of Maharashtra as follows:-
There is available a very wide discretion in the matter of obtaining additional evidence in terms of Section 391 of the Code of Criminal Procedure. But this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a retrial or to change the nature of the case against the accused. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. However, it is the concept of justice which ought to prevail and in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard. Section 391 was introduced in the statute-book for the purpose of making it available to the Court, not to fill up any gap in the prosecution case but to oversee that the concept of justice does not suffer.
12. That was a case where the Hon'ble Supreme Court accepted the course adopted by the High Court to examine the accused persons at the appellate stage as per the provisions of Section 313 of the Code of Criminal Procedure with regard to the incriminating circumstances which were not put to the accused persons by the trial Court. The High Court had to adopt that procedure to rectify the irregularity cropped up and pointed out by the defence. The facts and circumstances of the above case does not apply to the fact situation of these cases, where a new plea is taken and based upon which an expert opinion on the document is sought.
13. The Hon'ble Supreme Court in N. Balaji v. Virendra Singh and Ors. has held that the procedure should not be used to discourage substantial and effective justice but should be so construed as to advance the cause of justice. The aforesaid authority and the authorities in P.R. Chockalingam v. M. Pichai 2003-4-L.W. 77, Hasan Abubucker v. Kottikulam ST., Mohideen Pallivasal Therkku Mohindeen Pallivasal , Adil Jamshed Frenchman (D) by Lrs. v. Sardar Dastur Schools Trust and Ors. and Jaipur Development Authority v. Kailashwati Devi have arisen out of the civil proceedings. To decide a question as to whether a document should be sent for an expert scrutiny in a criminal case, inspiration cannot be drawn from the authorities laid down in the background of Civil Procedure Code.
14. The petitioner has filed the abovesaid criminal miscellaneous petitions seeking permission of the Appellate Court to send the documents for expert opinion in spite of the fact that he had chosen to admit his signature in the promissory notes just to elongate the appeal proceedings. Such tactics cannot be blessed by this Court. No useful purpose will also be served if those documents are sent for expert opinion. No necessity has arisen to interfere with the decision arrived at by the Appellate Court in the aforesaid criminal miscellaneous petitions. The criminal revision cases merit no consideration and therefore they are liable to be dismissed.
15. In the result, the criminal revision cases stand dismissed. Consequently, connected criminal miscellaneous petitions are also dismissed.