Kerala High Court
K.M. Johny vs P.N.Sukumarapillai on 25 October, 2017
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 25TH DAY OF OCTOBER 2017/3RD KARTHIKA, 1939
Crl.Rev.Pet.No. 540 of 2017 ()
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CRA 26/2015 of IIIRD ADDL. SESSIONS COURT, THODUPUZHA
ST 132/2013 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II,THODUPUZHA
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REVISION PETITIONER/APPELLANT/ACCUSED :
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K.M. JOHNY, AGED 67 YEARS,
S/O. MANI, KAMPAKATHINKAL HOUSE,
EDAMARAKU KARA, UDUMBANNOOR VILLAGE,
THODUPUZHA TALUK, CHEENIKUZHI P.O.,
THODUPUZHA-685581, IDUKKI DISTRICT.
BY ADVS.SRI.C.M.TOMY
SRI.MATHEW SKARIA
SRI.MANU TOM
SRI.BALU TOM
RESPONDENTS/RESPONDENTS/COMPLAINANT :
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1. P.N.SUKUMARAPILLAI, AGED 64 YEARS,
S/O.NARAYANAPILLAI,
PERUMPILLY HOUSE, KEERIKODE KARA,
KARIKODE VILLAGE, THODUPUZHA TALUK,
THODUPUZHA EAST P.O.,
THODUPUZHA, IDUKKI DISTRICT - 685381.
2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM.
R1 BY ADVS. SRI.MANSOOR.B.H.
SRI.M.A.KHADIRKUNJU
R2 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 25-10-2017, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
bp
ALEXANDER THOMAS, J.
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Crl.R.P.No. 540 of 2017
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Dated this the 25th day of October, 2017
O R D E R
The petitioner has been indicted for the offence punishable under Sec.138 of the Negotiable Instruments Act in S.T.No.132/2013 on the file of the Judicial First Class Magistrate's Court-II, Thodupuzha, instituted on the basis of the complaint filed by the 1st respondent (complainant) herein. Ext.P-1 cheque dated 29.2.2012 is for Rs.1.5 lakhs. The trial court, as per the impugned judgment dated 15.12.2014, has convicted the petitioner for the above said offence and sentenced him to undergo simple imprisonment for 4 months and to pay a fine of Rs.1.5 lakhs and in default thereof to undergo simple imprisonment for a further period of 2 months and the fine amount so realised was ordered to the paid in full, to the complainant as compensation under Sec.357(1)(b) of the Cr.P.C. Aggrieved thereby, the petitioner has preferred Crl.A.No.26/2015 before the Sessions Court, Thodupuzha. The appellate court concerned (Court of Additional Sessions Judge-III, Thodupuzha), as per the impugned judgment rendered on 10.2.2017 has confirmed the conviction, but modified the substantive sentence of simple imprisonment for 4 months by reducing the same to imprisonment till the rising of the court and has confirmed the direction to pay fine amount of Rs.1.5 lakhs with the default sentence clause of simple imprisonment for 2 months, etc. It is aggrieved by the above said Crl.R.P.540/17 - : 2 :-
judgments of both the courts below regarding the impugned conviction as well as sentence, that the petitioner has preferred the instant Crl.R.P taking recourse to the remedies available under the enabling provisions conferred under Sec.397 r/w Sec.401 of the Cr.P.C.
2. Heard Sri.C.M.Tomy, learned counsel appearing for the revision petitioner-accused, Sri.M.A.Khadirkunju, learned counsel appearing for R-1 (complainant) and Sri.Saigi Jacob Palatty, learned prosecutor appearing for R-2 State. Perused the L.C.R.
3. The brief of the case of the complainant is to the effect that the complainant and the accused were friends and that the accused had sought a personal loan of Rs. 1,50,000/- from the complainant, whereupon, the complainant had given a sum of Rs.1,50,000/- as personal loan to the accused on 31.1.2012, with the promise that it will be repaid within one month and that on the expiry of the said period of one month, the complainant had demanded payment of the debt amount, whereupon the accused had executed and issued instant Ext.P-1 cheque dated 29.2.2012 for Rs. 1,50,000/- in discharge of the said liability and the said cheque when presented resulted in dishonour. That the complainant after following the requisite procedural formalities, including the issuance of the statutory demand notice under Sec.138 proviso (b) of the Negotiable Instruments Act, has initiated the present complaint, which led to the conduct of the trial.
Crl.R.P.540/17 - : 3 :-
4. During the trial, the complainant has examined himself as P.W-1 and has marked Exts.P-1 to P-6 documents. The defence has adduced evidence orally through D.W-1.
5. The basic defence taken up by the accused is to the effect that the complainant is running a chit firm by name, "Sree Lakshmi Bankers" and that the accused was a subscriber to the chit conducted by the said firm of the complainant and that when the chit amount was auctioned, he was constrained to give the instant cheque as a blank signed one as security for the said transaction and that the said cheque has been misused in the instant complaint and that the transactions have never occurred in the manner alleged in the complaint and that the petitioner had never voluntarily executed and issued the instant cheque for Rs.1,50,000/- and that there was no personal borrowal transactions, between the parties, etc.
6. P.W-1 in cross examination has admitted that he is the sleeping partner of M/s.Sree Lakshmi Bankers and that the said financial concern is also running the business of chits and that they are duly registered to conduct such chitty business. To a specific question as to whether the accused had joined the chit in that firm in the year 2006, P.W-1 has answered as follows:
"xI^O_xJ_ &y_W dID_ %U_f? :_G_ g:VK_x_gK^ .Km IyE^W Vx_O^O_x_A^"."
In the cross examination, another specific question was asked as to whether a blank signed cheque of the petitioner and his deceased wife was obtained Crl.R.P.540/17 - : 4 :-
by the complainant's firm at the time the chit was auctioned in favour of the accused, etc., it was stated that the said suggestion is wrong. However, P.W-1 has admitted that as and when the chit is auctioned, a blank signed cheque is taken from the subscriber by the complainant's firm and that the details of such cheques collected by the firm will be duly entered in the register kept for that purpose by the firm.
7. The defence has examined D.W-1, who is the partner of Sree Lakshmi Bankers and who is running the business of the said firm. D.W-1 has stated that his firm has never conducted any chitty business and that it is engaged in the business of granting gold loans and DPL (Demand promissory Note) loans. Further D.W-1 has deposed that the version given by P.W-1 that their firm has been conducting chits, etc. is wrong and further that D.W-1 was not in a position to produce the alleged documents in connection with the alleged chit business, as no such documents are available, since the firm is not conducting any chit business, whatsoever.
Therefore, there appears to be grave contradictions as between the evidence given by P.W-1 on the one hand regarding the conduct of the chit business by that firm as well as the contra evidence given by D.W-1.
8. Both the courts below have found that the specific defence taken up by the accused is to the effect that when the chit was auctioned, he had given 2 blank signed cheques including the present one, which has been misused etc. and that if actually the petitioner was in fact a subscriber Crl.R.P.540/17 - : 5 :-
to a chit run by the complainant's firm and the accused had auctioned the chit amount, etc. then certainly he will have some documents with him, like passbook, etc. to establish that in fact he had subscribed to the chit run by the said firm and that since the petitioner has not produced any such materials, the courts below were not in a position to accept the tenability of the defence suggestion regarding the defence case set up by the accused that he had surrendered blank signed cheques at the time of auctioning the chit, etc. The learned counsel appearing for the petitioner had strenuously argued that the said approach made by the courts below blaming the petitioner for not having produced materials to vindicate his claim that he was a chit subscriber is in effect and substance, compelling the accused to give defence evidence, which is a patent violation of the guaranteed fundamental right against self incrimination engrafted in Art.20(3) of the Constitution of India, etc. The said argument raised by the petitioner's counsel attacking the abovesaid approach made by the courts below as being in violation of Art.20(3), etc. is unsustainable and untenable. True that the accused has not produced any materials to show that he was in fact a subscriber of the chit said to have been conducted by the complainant's firm. But the fact of the matter is that there appears to be serious contradictions in the versions given by P.W-1 and D.W-1 regarding the conduct of the chit business. P.W-1 on the one hand would clearly admit that his is firm is running, not only gold loan business but also chit business and that the said firm has Crl.R.P.540/17 - : 6 :-
consistent practice of collecting blank signed cheques from the chit subscribers as and when the chit amounts are auctioned or prized. P.W-1 has even candidly stated that it might be true that the accused may also have been a subscriber. But at the same time, P.W-1 has stoutly denied that any blank signed cheques has been received from him in the chit transaction or that the said cheque has been misused in the present case, etc. On the other hand, D.W-1 would state to the hilt that no chit business whatsoever is being conducted by the firm and that the version given by P.W-1 that the firm is conducting business, etc. is patently wrong, etc. The effect of these contradictions has not been properly assessed and evaluated by both the courts below.
9. There is yet another crucial aspect of the matter. The specific and precise case of P.W-1 is to the effect that the cheque has been duly executed and issued by the accused on the day in question and that all the entries in the cheque had been made by the accused. The accused had filed an application as Criminal Miscellaneous Petition No.2425/2013 in S.T.No. 132/2013 before the trial court in the instant case, praying that the entries in the said cheque should be subjected to analysis by expert. The learned Magistrate has dismissed the said application on 15.12.2014 (the day on which, the judgment has been rendered in the complaint), due to the following reasons as can be seen from paras 5 to 7 of that order:
"5. The Point:- On going through the materials available, it is seen that the accused has failed to prove his defence that Ext.P-1 cheque had Crl.R.P.540/17 - : 7 :-
been issued in blank as security when he avilaed the chitty amount from the Sree Lakshmi Bankers. It is true that the complainant has asserted that the cheque had been written by the complainant himself and the accused seeks for the comparison of the cheque with his handwriting to disprove the said case.
6. But the accused is admitting his signature in Ext.P-1 and as noted earlier, he has failed to prove his defence that the cheque was issued in blank to the Sree Lakshmi Bankers. The accused who has not initiated any step for the return of the cheque from the Sree Lakshmi Bankers has not even sent any reply to the lawyer notice. Most significantly, the accused has not made available his handwriting contemporaneous to Ext.P-1 cheque of the year 2012.
7. In the above circumstances, this Court finds that the comparison of Ext.P-1 cheque with the handwriting of the accused is not at all necessary of the determination of the question involved in the case and consequently the petition is dismissed."
A mere perusal of the impugned order dated 15.12.2014 dismissing Criminal Miscellaneous Petition No.2425/2013 would disclose that the main ground therein is that the accused has admitted his signature in Ext.P-1 and that and that he has failed to prove his defence that the cheque was issued in blank to Sree Lakshmi Bankers and that the accused has not initiated any steps for the return of the cheque from Sree Lakshmi Banker and has not sent any reply notice, etc. True that the petitioner has not sent any reply notice after issuance of the statutory demand notice. It also appears that the petitioner has not taken any appropriate action when the alleged blank singed cheque was not returned. However, one of the crucial aspects that is relied on by the petitioner in aid of his defence is that except the signature, all the other handwritten entries in the cheque do not pertain to him. Whereas P.W-1 in the complaint and in his proof affidavit has asserted that on 29.2.2012, the accused had executed and issued the instant Crl.R.P.540/17 - : 8 :-
cheque dated 29.2.2012, drawn from his account, etc. This Court is of the firm opinion that the denial of the request by the trial court to subject the cheque for expert handwriting analysis, has deprived a vital opportunity of the defence to prove their case and that this is certainly a vitiating factor.
10. The Apex Court in the decision in Nagappa v. Y.R. Muralidhar, reported in (2008) 5 SCC 633, has observed, while construing the scope and ambit of Sec.243(2) of the Cr.P.C. that as to what should be the nature of defence evidence is not a matter, which should be left only to the discretion of the court and it is the accused, who knows how to prove his defence and that the court being the master of the proceedings, must determine as to whether the application filed by the accused in terms of Sec. 243(2) of the Cr.P.C. is bona fide or not, or whether thereby he intends to bring on record a relevant material. But that ordinarily, an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses, etc. and if permitted to do so, steps therefor, however, must be taken within a limited time and that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would be not at all relevant. It will be profitable to refer to paras 8 to 11 of the abovesaid judgment in Nagappa's case supra, which read as follows:
'8. An accused has a right to fair trial. He has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognised by Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure, which reads as under:
Crl.R.P.540/17 - : 9 :-
"243. Evidence for defence.--(1) * * *
(2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing:
Provided that, when the accused has cross-examined or had the opportunity of cross- examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice."
9. What should be the nature of evidence is not a matter which should be left only to the discretion of the court. It is the accused who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused in terms of sub-section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses, etc. If permitted to do so, steps therefor, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant.
10. The learned trial Judge as also the High Court rejected the contention of the appellant only having regard to the provisions of Section 20 of the Negotiable Instruments Act. The very fact that by reason thereof, only a prima facie right had been conferred upon the holder of the negotiable instrument and the same being subject to the conditions as noticed hereinbefore, we are of the opinion that the application filed by the appellant was bona fide.
11. The issue now almost stands concluded by a decision of this Court in Kalyani Baskar v. M.S. Sampoornam [(2007) 2 SCC 258] (in which one of us, L.S. Panta, J., was a member) wherein it was held: (SCC p. 262, para 12) "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 Crl.R.P.540/17 - : 10 :-
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.'
11. The Apex Court in the decision in Kalyani Baskar v. M.S. Sampoornam, reported in (2007) 2 SCC 258 = 2007(1) Crimes.106 (SC), has also explained the scope of "fair trial" and has held that it includes fair and proper opportunities allowed by law to prove innocence of the accused and adducing evidence in support of that defence is a valuable right and denial of that right means denial of fair trial and would amount to violation of guarantee of fair trial enshrined in Art.21 of the Constitution of India. It will be profitable to refer to paras 10 to 13 of the abovesaid decision in Kalyani Baskar's case supra, which read as follows:
'10. It is not in dispute that the appellant at the initial stage of her appearance before the Magistrate had filed an application under Section 245 CrPC in which she had categorically denied her signature on the cheque and its delivery to the respondent besides raising other preliminary objections in opposition to the complaint filed by the respondent under Section 138 of the Act. From the record, it appears that the said application was dismissed by the Magistrate on the ground that the genuineness of the signature can be questioned only at the time of trial. The appellant accepted the correctness of the said order of the Magistrate. During the trial, the respondent was examined as PW 1 on 22-9-1999 and PW 3, the officer of the bank was examined on 22-11-2000. It is thereafter that the appellant had filed the application under Section 243 CrPC praying to send the cheque in question, for ascertaining the bona fide and genuineness of her signature appended thereon. The trial Magistrate as well as the High Court have observed that Section 243 CrPC deals with summoning of defence witnesses and cause any document or thing to be produced through him.
But in the present case, the accused has filed a petition without naming any person as witness or anything to be summoned which is to be sent for handwriting expert for examination.
11. To appreciate the reasoning recorded by the High Court in its impugned order, it is useful to refer to the provisions of Section 243 CrPC, which reads as under:
"243. Evidence for defence.--(1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record.
Crl.R.P.540/17 - : 11 :-
(2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing:
Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.
(3) The Magistrate may, before summoning any witness on an application under sub-section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in court."
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.
13. For all the foregoing reasons, we allow this appeal and set aside the order of the High Court dated 10-2-2004 passed in Criminal Revision Case No. 335 of 2002 by which the order dated 15-11-2001 of the Judicial Crl.R.P.540/17 - : 12 :-
Magistrate made in Crl. MP No. 341 of 2001 in CC No. 439 of 1998 dismissing the application of the appellant under Section 243 CrPC was affirmed. Accordingly, Crl. MP No. 341 of 2001 in CC No. 439 of 1998 on the file of the Judicial Magistrate, Tambaram, Chennai, shall stand allowed. The learned Magistrate shall take appropriate steps for obtaining the report of the handwriting expert on the point whether the signature on the cheque is that of the accused and shall proceed with the trial of the case in accordance with law. Since the case is very old, further proceedings shall be taken with utmost expedition.'
12. It has also been held by the Apex Court in para 13 of the judgment in Lakshmi & Anr. v. Chinnammal alias Rayyammal & Ors, reported in (2009) 13 SCC 25, para 13, that if bringing on record a document is essential for proving the case by a party, ordinarily the same should not be refused; the court's duty being to find out the truth. That the procedural mechanics necessary to arrive at a just decision must be encouraged, etc.
13. The petitioner's counsel has also raised an argument that the complainant has not been able to establish cogently the source of funds at the time of the borrowal transaction in question and that therefore the complainant is not entitled to the benefit statutory presumption under Sec.
118(a) and Sec. 139 of the N.I. Act In the view that is proposed to be taken, this Court is not rendering any final opinion on any of those contentions of the petitioner. It is for the parties to advance their contentions before the trial court.
14. For these reasons, this Court is of the considered view that the denial of the request made by the petitioner to subject the handwritten entries in the cheque for expert handwriting analysis, would be violative of Crl.R.P.540/17 - : 13 :-
the concept of fair trial, taking into account the facts and circumstances in this case. This has certainly vitiated the trial and therefore, this Court is of the view that the interest of justice could be advanced by remitting the matter to the trial court to ensure that the abovesaid cheque is subjected to handwriting analysis by an expert of the Government Forensic Science Laboratory and also to permit the parties to adduce oral evidence of that expert, if so deemed fit and proper, after receipt of the expert report. Accordingly, the impugned judgments of both the courts below in the instant case are set aside and the matter is remitted to the trial court. The impugned order dated 15.12.2014 rendered by the trial court dismissing Criminal Miscellaneous Petition No.2425/2013 in S.T.No. 132/2013 will also stand set aside and resultantly, the said application will stand restored to the file of the trial court.
15. It is for the parties to enter appearance and produce a copy of this order before the trial court without any further delay. The trial court will ensure that necessary orders are passed on Criminal Miscellaneous Petition No.2425/2013 allowing the said request and necessary steps should be taken to ensure that the specimen handwritings of the accused are taken as per the prescribed procedure and such specimen handwritings as well as the original of Ext.P-1 cheque should be sent to a Forensic Science Laboratory under the Directorate of Forensic Sciences of the Government of Kerala, for expert handwriting analysis. Having regard to Crl.R.P.540/17 - : 14 :-
the long pendency of this complaint, it is also ordered that on receipt of the samples of the handwritings as well as the original of the cheque, FSL authorities concerned will take all reasonable endeavours possible under the circumstances to ensure that expert opinion is rendered without much delay, preferably within 3 to 4 months from the date of receipt of the necessary requisition from the trial court. The trial court will forward a copy of this order along with the requisition, to the FSL authorities for compliance. After receipt of the expert opinion, the parties will be at liberty to adduce oral evidence of the expert, if it is so deemed fit and proper. Thereafter, the trial court will consider the entire matter afresh and render a considered verdict after taking into account the arguments of both sides. The judgment of the trial court may be rendered within 2 to 3 months from the date of receipt of the expert opinion.
16. It is pointed out by the petitioner's counsel that the petitioner had deposited Rs.40,000/- before the trial court in compliance with this Court's interim order dated 2.5.2017. If that be so, the trial court will ensure that the said amount is placed in a fixed deposit with the treasury so as to earn maximum rate of interest. The Registry will return back the LCR to the trial court along with a copy of this order.
With these observations and directions, the aforecaptioned Criminal Revision Petition stands finally disposed of.
Sd/-
sdk+ ALEXANDER THOMAS, JUDGE
///True Copy///
P.S. to Judge