Madras High Court
Alagammai vs Sockalingam on 3 December, 2010
Author: S.Tamilvanan
Bench: S.Tamilvanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 03/12/2010 Coram The Honourable Mr. Justice S.TAMILVANAN Crl.R.C (MD).No.783 of 2010 and M.P.(MD).Nos.1 and 2 of 2010 Alagammai ..... Petitioner vs. Sockalingam ..... Respondent Criminal Revision Case filed under Section 397 and 401 of Criminal Procedure Code against the order, dated 11.10.2010 made in M.P.No.7033 of 2010 in C.C.No.511 of 2007 on the file of the Judicial Magistrate, Karaikudi, Sivagangai District. !For petitioner ... Mr.B.Prahalad Ravi for M/s. Hallmark Associates ^For respondent ... Mr.B.Pugalendhi :ORDER
Challenging the order, dated 11.10.2010 passed in M.P.No.7033 of 2010 in C.C.No.511 of 2007 on the file of the Judicial Magistrate, Karaikudi, Sivagangai District, this criminal revision has been preferred by the petitioner herein.
2. It is seen that the petition in M.P.No.7033 of 2010 was filed by the revision petitioner herein before the Court below seeking an order under Section 45 of Indian Evidence Act to send two cheques relating to the case pending before the Court below to forensic laboratory for getting expert opinion regarding the genuineness of the signature.
3. It is an admitted fact that the case was taken on file against the petitioner / accused on the complaint given by the respondent under Section 138 of Negotiable Instruments Act. The learned Judicial Magistrate has held in the impugned order that the signature available in the cheques were not specifically denied by the petitioner / accused, however she filed the petition to send the cheque for expert opinion. It is not in dispute that the prosecution evidence was over and the case was posted for questioning the petitioner/accused under Sec.313 Cr.P.C. Even, when the petitioner / accused was questioned, as per the impugned order, the signature available in the cheques were not specifically denied by her. It is further seen from the impugned order that the petitioner herein could have managed to get number of adjournments and filed petition in Crl.O.P.(MD).No.5633 of 2008 and subsequently, that was not pressed by the petitioner herein. On 11.04.2008, the petitioner / accused appeared before the Court below and sought time for settlement, however, she was absent for about 26 hearings, then the petitioner filed Crl.O.P.(MD).No.3968 of 2008 again to quash the proceeding, however, the same was also not pressed by the petitioner. As per the earlier order of this Court, the Court below was directed to dispose the case on merits within three months from the date of receipt of a copy of the order.
4. Learned counsel appearing for the petitioner submitted that the court below has erroneously dismissed the application filed by the petitioner under Section 45 of Indian Evidence Act and it is needed to send the cheques for comparison of the signature. It was further argued that the petitioner had not produced any document containing her admitted signature to compare the signature available in the cheque, which is not a ground for dismissing the petition.
5. Per contra, learned counsel appearing for the respondent drew the attention of this Court to the impugned order, wherein the court below has found that in the reply notice, the petitioner / accused has not specifically denied the signature. On 07.03.2008 when the petitioner / accused was questioned, she had not raised any defence disputing the signature and further, the petitioner filed Crl.O.P.No.5633 of 2008, was not pressed by the petitioner on 16.12.2009. Then on 11.04.2008, the petitioner / accused appeared before the court below and prayed time for settlement. During pendency of the case, she took several adjournments, accordingly, the case was adjourned for 26 hearings, then again the petitioner filed Crl.O.P.No.3968 of 2008 to quash the proceedings. This Court, by order passed in the criminal original petition directed the court below to dispose it within three months from the date of the order. The Court below also found that after the complainants evidence was closed and when the case was posted for 313 questioning, the petitioner / accused filed a petition under Section 311 Cr.P.C to recall the complainant, who was examined as prosecution witness for the purpose of cross examination. According to the learned counsel appearing for the petitioner, it is only a delay tactics adopted by the petitioner / accused and that there is no bonafide reason for allowing the petition.
6. Learned counsel appearing for the petitioner / accused in support of his contention, produced a decision rendered on 10.06.2010 in Crl.R.C.No.744 to 747 of 2003. In the aforesaid decision, relying on State of Maharashtra vs. Sukhdeo Singh reported in AIR 1992 SC 2100, Ajit vs. State reported in AIR 1997 SC 3255, Kalyani Baskar vs. M.S.Sampoornam reported in JT 2007 (1) SC 77 and T.Nagappa vs. Y.R.Muralidhar reported in 2008 (5) SCC 633, this Court allowed the petitions and directed to send the disputed cheques for getting expert opinion.
7. In State of Maharashtra vs. Sukhdeo Singh reported in AIR 1992 SC 2100, the Hon'ble Apex Court has held as follows :
"Court should be slow to compare disputed document with admitted document for comparison although section 73 empowers the court to compare disputed writings with the specimen / admitted documents shown to be genuine. Prudence demands that Court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen / admitted writings is not of high standard."
8. In T.Nagappa vs. Y.R.Muralidhar reported in 2008 (5) SCC 633, the Hon'ble Apex Court has held that though there could be presumption raised under Section 118 (a) or 139 of Negotiable Instruments Act, when there is a contention by the accused that the complainant had misused the cheque, opportunity must be given to the accused for adducing rebuttal evidence thereof, since the law places burden on the accused, he must be given an opportunity to discharge the burden. The Hon'ble Apex Court has further held 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:
"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 known 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 being 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."
9. In Kalyani Baskar vs. M.S.Sampoornam reported in 2007 (2) CTC 364, the Hon'ble Apex Court has held as follows :
"12.Section 243(2) is clear that a Magistrate holding an inquiry under the Cr.P.C. 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 hand-writing 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 hand-writing 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 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, Cr.P.C. 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), Cr.P.C. 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 hand-writing expert after the respondent has closed her evidence, the Magistrate should have granted such a request ."
10. This Court by a learned single Judge, relying on the decision rendered by the Hon'ble Apex Court in Kalyani Baskar vs. M.S.Sampoornam reported in 2007 (2) CTC 364 and the decision rendered by this Court in Ramakrishnan P.R vs. P.Govindarajan reported in 2007 (1) MLJ (Crl) 1297, rejected the plea of the accused to send the cheque for expert opinion to found out the age of the ink used in the cheque.
11. In P.Arumugam vs. Rajamani, reported in 2007 (1) LW (Crl) 491, relying on the decision rendered by the Hon'ble Apex Court in Kalyani Baskar vs. M.S.Sampoornam reported in JT 2007 (1) SC 77, another learned single Judge of this Court allowed the revision petition and directed the Court below to send the disputed document for expert opinion.
12. It is seen that both the decisions of this Court seem to be contra, however, I am of the view that the said cases have been decided by the two learned Judges of this Court only applying the rulings of the Hon'ble Apex Court on the available facts and circumstances of the case. Therefore, this Court is of the view that there is no contradiction in the view taken by two learned Judges of this Court.
13. In Kalyani Baskar vs. M.S.Sampornam, reported in 2007 (2) CTC 364 and T.Nagappa vs. Y.R.Muralidhar reported in 2008 (5) SCC 633, the Hon'ble Supreme Court has categorically held that reasonable opportunity must be given to the accused to discharge his burden. It is not in dispute that under Sections 118
(a) and 139 of Negotiable Instruments, the Court can draw legal presumption, however, reasonable opportunity must be given.
14. Section 118 (a) of Negotiable Instruments Act reads as follows :
118 Presumptions as to negotiable instruments - Until the contrary is proved, the following presumption shall be made : -
(a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
15. Similarly, Section 139 of Negotiable Instruments Act reads thus :
139. Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability.
16. As per the adverserial criminal jurisprudence, the prosecution has to establish the alleged guilt against the accused beyond reasonable doubt and accordingly, the burden is upon the prosecution to establish the guilt. If the guilt is not established by the prosecution beyond reasonable doubt, the accused is entitled to get acquittal. Even if there is suspicious circumstance, the benefit of doubt is given to the accused.
17. The Hon'ble Apex Court in T.Nagappa's case has categorically held that right to defend is a fundamental right as enshrined under Article 21 of the Constitution of India and the right to defend oneself for that purpose to adduce evidence is recognised by the Parliament, as per sub-section (2) of Section 243 of the Code of Criminal Procedure. However, no one can adopt any delay tactics or abuse the process of law or the court, under the guise of reasonable opportunity.
18. In Kalyani Baskar's case, the Hon'ble Apex Court has categorically held that the Magistrate, who is empowered to pass the order has normally allow the petition, seeking opinion, unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. If the object of the accused is apparent that he / she is adopting delay tactics, without any justifiable reason, the learned Magistrate can reject the request for sending the document for expert opinion.
19. It cannot be disputed that the case registered under Section 138 of Negotiable Instruments Act is different from that of the cases registered under the Indian Penal Code. It is an admitted fact that most of the Developed countries are encouraging cheque transactions, as it would be beneficial for commerce and economic development and further, encouraging cheque transactions would normally minimise persons evading Income-Tax and other taxes payable to the Government. The pendency of the case registered under Section 138 of Negotiable Instruments Act for decades together would certainly discourage the cheque transactions.
20. As per Section 139 of Negotiable Instruments Act, if the signature of the cheque is admitted, there shall be a presumption that the drawer of the cheque has authorised the holder even to fill up the blanks, however, it is a rebuttal presumption, accordingly, the burden is shifted on the accused.
21. It could be seen in many of the cases that the verbatum defence being raised by the accused is that his / her signed blank cheque was misplaced and that was misused by the respondent / complainant. It could not be disputed that no reasonable prudent man would keep a blank signed cheque in a careless manner, without knowing the fact that the same could be misused by any person. Even in such a case, in order to protect the right of the accused, in the light of the decisions rendered by the Hon'ble Apex Court, the Court has to give reasonable opportunity to the accused for rebuttal evidence. In such circumstances, the conduct of the party is more relevant and if the object of the accused is vexations or delaying criminal proceeding, the petition shall be dismissed by the concerned Magistrate.
22. In the instant case, though the cheque was dishonoured by the bank, only due to insufficient funds and for the legal notice served on the revision petitioner / accused, the petitioner has not specifically disputed the signature as found by the Court below. The petitioner had not chosen to cross exam the witness, though proof affidavit was filed by the complainant long back. After the complainant's evidence was closed, while the revision petitioner / accused was questioned under Section 313 Cr.P.C, she has not specifically raised a defence disputing the signature available in the cheques. Admittedly, she filed two criminal original petitions to quash the proceedings and out of the said two petitions, one was dismissed as not pressed and the subsequent petition was dismissed on merits. It is not in dispute that the petitioner herein is adopting delay tactics for about 26 hearings, as per the findings of the Court below and the petitioner also tried for settlement and on that ground also the case was adjourned, however, subsequently, there was no settlement. It is not in dispute that this Court, by order passed in the criminal original petition, directed the court below to dispose the case on merits within a period of three months, however, the petitioner filed a petition under Section 45 of Indian Evidence Act to sent the cheques for expert opinion without producing any documents containing admitted signature of the petitioner / accused. After the dismissal, this revision has been preferred and gained further time. The aforesaid conduct of the petitioner / accused would clearly show that it is only a delay tactics and that there is no bonafide reason available in favour of the petitioner.
23. Considering the facts and circumstances, I am of the view that in the light of the decision rendered by the Hon'ble Apex Court in Kalyani Baskar's case and other cases, the learned Judicial Magistrate rejected the claim only on the ground that the object of the petitioner was vexation and delaying the criminal proceedings. When there is clear persistent attempt of making delay tactics in a case filed under Section 138 of Negotiable Instruments Act, entertaining such petition would be construed as encouraging the abuse of process of the court.
24. Considering the detailed order passed by the court below, in the light of various decisions rendered by the Hon'ble Apex Court, I am of the considered view that there is no error or illegality in the impugned order, so as to warrant any interference of this Court.
25. In the result, this criminal revision petition is dismissed. Consequently, connected miscellaneous petitions are also dismissed. The Court below is directed to dispose the case, solely on merits, uninfluenced by the findings of this Court, according to law, within a period of two months from the date of receipt of a copy of this order, without causing further delay.
tsvn To The Judicial Magistrate Karaikudi, Sivagangai District