Madras High Court
V. Srinivasan vs E.S. Gunasekar on 3 February, 2009
Author: R. Regupathi
Bench: R. Regupathi
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 3-2-2009 CORAM THE HON'BLE MR.JUSTICE R. REGUPATHI Crl.R.C.Nos.69, 70 and 72 of 2008 and M.P.Nos.1+1 and 1 of 2008 V. Srinivasan ... Petitioner in all the petitions vs E.S. Gunasekar ... Respondents in all the petitions Revision Petitions are filed under Sec.397 and 401 Cr.P.C against the order dated 13.12.2007 made in CMP Nos.3754, 3753 and 3755 of 2007 in CC Nos.1335, 971 and 970 of 2006 on the file of Judicial Magistrate No.I, Erode. For petitioner : Mr.N. Manokaran For respondent :Mr.T. Murugamanickam COMMON ORDER
The petitioner has filed the revision petitions against the order dated 13.12.2007 made in CMP Nos.3754, 3753 and 3755 of 2007 in CC Nos.1335, 971 and 970 of 2006 on the file of Judicial Magistrate No.I, Erode.
2. The petitioner is an accused for the offence punishable under Sec.138 of the Negotiable Instruments Act before the trial Court.
3. Pending trial, at the defence stage, invoking Sec.45 of the Evidence Act, a petition has been filed by the petitioner/accused to send the cheque, in question, for examination by a handwriting expert, since the contents of the cheque has been disputed. By the order impugned, it was declined and aggrieved against that, the present revisions have been preferred before this Court.
4. The learned counsel for the petitioner/accused submits that the petitioner was a partner in M/s Venkateswara Dyeing Mill and the partnership was dissolved during 2004. One Thangaraj, who was the partner of the above Dyeing Mill was in possession of the signed cheque of the petitioner and it was given to the respondent/complainant and the same has been misused. The learned counsel also submits that the complainant did not fill up the cheque and therefore to substantiate his defence, the cheque must be sent to a handwriting expert.
5. The learned counsel for the petitioner relied on the case reported in 2007 SAR (Crl.)154 (Kalyani Baskar vs M.S. Sampornam) and by relying paragraph 12, contended that to rebut the presumption and to substantiate his defence, the cheque in question must be sent to handwriting expert. The learned counsel further relied on the case reported in (2008) 5 SCC 633 (T. Nagappa vs Y.R. Muralidhar) to substantiate the same point.
6. The learned counsel for the respondent/complainant submits that such a defence has been taken at a belated stage and it has been held by the Hon'ble Supreme Court in the same judgment that such petitions filed with an object of vexation or delaying the criminal proceedings, cannot be encouraged.
7 I have perused the materials available on record.
8. The case is pending from 2006 onwards. The petitioner/accused soon after the receipt of statutory notice would have replied about these points now raised at the defence stage, and it is surprising to see that neither while the initial questioning nor when he was questioning under Sec.313 Cr.P.C, such defence was taken. P.W.1 was not even cross examined on this point. In the impugned order it has been stated that the case was repeatedly adjourned on the ground of settling the dues. The signature in the cheque has not been disputed. Therefore, the presumption is that such signature has been assigned only after knowing the contents. Merely because there is a different handwriting in the cheque, mechanically, without application of mind, at a belated stage, such a defence cannot be taken. The precedents relied on by the petitioner are not applicable to the case on hand, since it is apparent that such a defence and prayer has been made at a belated stage, only to drag on the proceedings.
9. Therefore, I do not find any merit in the petitions. Hence, all the revisions are dismissed. Consequently, the connected Mps are closed. The learned trial Judge is directed to complete the trial within a period of three months from today, after observing the formalities.
sr To The Judicial Magistrate No.I, Erode