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2007 DIGILAW 3955 (MAD)

N. Ayyasamy v. S. K. Chinnasamy

2007-12-04

K.MOHAN RAM

body2007
Judgment :- 1. The petitioner is facing trial for the offences under Section 138 of Negotiable Instruments Act in C.C.No.406 of 2006 on the file of the learned Judicial Magistrate No.11, Erode. During the course of the examination of P.W.1, the complainant, the Accused/petitioner herein filed Crl.M.P. No.6350 of 2007 under Section 45 of Indian Evidence Act to send the cheque in question alongwith admitted signature of the accused to the expert for comparison and opinion regarding the genuineness of the signature found in the cheque. The case was taken on file on 22.08.2006 and pending for defence from 212. 2006 till 210. 2007 and the accused took time stating that he is going to settle the matter but he did not settle the matter and sought for further time which was opposed by the complainant and at that stage the present Petition has been filed. It is contended by the complainant that the accused has not taken such a plea in his reply notice. In the reply notice, the accused had admitted that there was money transaction between the complainant and accused and the cheque was given as a security. 2. Learned Magistrate, on a careful consideration of the materials available on record, rejected the said Petition. Being aggrieved by that, the accused has filed the present Revision Petition. 3. Mr. N. Manoharan, learned counsel for the petitioner has submitted that though it has not been specifically stated in the reply notice that the signature of the accused/petitioner herein has been forged, nevertheless it is stated in the reply notice as follows: "Our client submits that he was having money transaction from your client since 2004 to 2005. Your client received several blank cheques and pronotes from our client as security." Further in the same reply notice it is stated as follows: "Our client suspects that to wreck the vengeance, your client forged the said cheque alleged in your notice as already given by our client as security to your client. Further our client suspects that in order to get unlawful gain from our client, your client forged the document and caused you to issues the false notice. Our client did not borrow Rs.1,90,000/- from your client on 20.6.2006 and he did not give the above said cheque to discharge the liability mentioned in your notice." 4. Further our client suspects that in order to get unlawful gain from our client, your client forged the document and caused you to issues the false notice. Our client did not borrow Rs.1,90,000/- from your client on 20.6.2006 and he did not give the above said cheque to discharge the liability mentioned in your notice." 4. Learned counsel further submitted that if the cheque in question is sent for expert opinion no prejudice will be caused. He has also relied upon decision of the Honourable Supreme Court in Kalyani Baskar v. M.S. Sampoornam, 2007 (1) MLJ (Crl.) 1020, and in that decision, the Honble Supreme Court has held that the accused should be allowed to get the opinion of an expert as per Section 243 of Cr.P.C. In the said decision in para 12, Honourable Apex Court has observed as under: "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 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 here 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. 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 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." 5. I have carefully considered the said submissions made by the learned counsel for the petitioner. 6. It is pertinent to point out that in the reply notice dated 27. 2006 the petitioner herein has stated that he was having money transaction with the complainant during 2004 2005 and the complainant received several blank cheques and pronotes from the accused as security. But after that, the complainant has not made any money transaction with the petitioner. The petitioner has settled the entire amount with interest to the complainant. The complainant returned the cheques and other documents withholding the cheque in question without the petitioners knowledge. It is further stated in the reply notice that on 15.07.2006 the complainant came to the petitioners office and demanded further payment of Rs.50,000/-with interest which ended in a wordy quarrel. Only after receipt of the legal notice, the petitioner came to know that the cheque in question was sent for collection and was returned by the petitioners bankers. It is further stated in the reply notice that on 15.07.2006 the complainant came to the petitioners office and demanded further payment of Rs.50,000/-with interest which ended in a wordy quarrel. Only after receipt of the legal notice, the petitioner came to know that the cheque in question was sent for collection and was returned by the petitioners bankers. As rightly pointed out by the petitioner, the above said averments contained in the reply notice clearly show that there was money transaction between the petitioner and the complainant and the petitioner has admitted that he handed over the blank cheques and one such cheque was allegedly retained by the complainant, which has been utilised to file the Complaint. 7. A perusal of the averments which have been extracted above, does not indicate that the petitioner has specifically stated that his signature in the cheque has been forged by the complainant. Further, the same has not been suggested to P.W.1 during the course of the trial or stated by the accused during the questioning of accused under Section 313, Cr.P.C. and he had not stated that the signature found in the cheque in question is not his signature and his signature has been forged. As rightly pointed out by the Trial Court, the petitioner has filed the Petition under Section 45 of Indian Evidence Act to drag on the proceedings having waited for a long time. 8. A close reading of the decision reported in Kalyani Baskar v. M.S. Sampoornam, 2007 (1) MLJ (Crl.) 1020 shows that in that case, immediately after the appearance before the learned Magistrate, the accused raised preliminary objection that the accused has not signed the cheque or not issued the same to the complainant/respondent. 9. Considering the said specific stand taken by the accused in that case, the Apex Court observed as above in para 12 of the decision. The facts of that case are totally different from that of the present case and hence the ratio laid down in that decision is not applicable to the facts of this case. It is pertinent to point out that it is not specifically stated in the reply notice that the signature of the accused has been forged and even when the petitioner was questioned under Section 313, Cr.P.C., he has not chosen to state that the signature in the cheque has been forged. It is pertinent to point out that it is not specifically stated in the reply notice that the signature of the accused has been forged and even when the petitioner was questioned under Section 313, Cr.P.C., he has not chosen to state that the signature in the cheque has been forged. Further the petitioner has filed the present Petition only to drag on the proceedings. Therefore for the above said reasons, I am not inclined to entertain the Revision Petition and hence the Revision Petition is dismissed. 10. However, it is made clear that this Court has not expressed any opinion regarding the genuineness of the signature found in the cheque in question and the Trial Court should independently consider the materials that are available on record and decide the case on merits without being carried away by the opinion in the order which is now sought to be revised.