Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 58 (MP)

NARENDRA DHAKAD v. ANAND KUMAR

2008-01-11

S.C.VYAS

body2008
Judgment S.C.Vyas, J. ( 1. ) Petitioner herein is facing prosecution under Section 138 of the Negotiable Instrument Act before Chief Judicial Magistrate First Class, Ratlam in Criminal Case No. 1595/04. At present the criminal case is at the stage of recording defence evidence and final arguments. At that stage petitioner herein made a request to call some defence witnesses and also to get the cheque in question examined by some hand-writing expert. These two applications were dismissed by learned Chief Judicial Magistrate. The order was challenged by way of a criminal revision before learned Sessions Judge unsuccessfully. Now the order passed by learned Chief Judicial Magistrate as well as Sessions Judge have been called in question before this Court by way of these petitions filed u/S.482 of Cr.P.C. Both petitions were heard together and are being decided by his common order. ( 2. ) Learned counsel for the petitioner submitted that from the very beginning it was defence of the petitioner that the cheque in question was not given by him to the complainant/respondent and the same was given to one Ankit Kumar by him with whom he was having many transactions and the cheque was simply given by way of security. It was also part of the defence of the petitioner that the said Ankit Kumar mis-used that cheque and handed it over to the complainant/respondent who entered his name in the cheque after making material alterations in the same and then filed a false complaint. It has been submitted that in support of this defence petitioner himself has given his statement and now he wants to examine one more witness in his defence and to get the cheque in question examined by a hand-writing expert to show that there are material alterations in the cheque. ( 3. ) Per contra, learned counsel for the respondent submitted that right from the beginning the signatures of the cheque were not called in question by the petitioner/accused and it was admitted that the questioned cheque bears signature of the petitioner/accused. ( 3. ) Per contra, learned counsel for the respondent submitted that right from the beginning the signatures of the cheque were not called in question by the petitioner/accused and it was admitted that the questioned cheque bears signature of the petitioner/accused. In view of this admitted position presumption u/S.139 of The Negotiable Instrument Act arises in favour of the complainant and it shall be presumed unless contrary is proved that the holder of the cheque received the cheque of the nature referred to in u/S.138 of the Negotiable Instrument Act for the discharge in whole or in part of any debt or other liability. Learned counsel submitted that the applications for giving permission to produce other defence witnesses and to get the questioned cheque examined by an hand-writing expert have been moved u/S.91 of the Cr.P.C. only for the purpose of delay in trial and no useful purpose would be served by providing any further opportunity to the petitioner for producing some more witnesses or by getting the questioned cheque examined by an hand-writing expert when the signatures are admitted. ( 4. ) I have considered the rival contentions raised by both the parties and minutely examined the order passed by learned Chief Judicial Magistrate as well as learned Sessions Judge. ( 5. ) Both the Courts below have given a clear cut finding that the present petitioner has not challenged his signature on the disputed cheque (Ex.P/1). Bank Manager Rameshchandra Sharma was examined in the case but no question was put to that witness also challenging signatures of the accused/petitioner on the cheque. In these circumstances it appears un-disputedly that the cheque bears signatures of the petitioner herein. Other columns of the cheque may be filled in by anyone on the instructions of the petitioner himself and when the signatures on the cheque are not disputed then no useful purpose will be served by getting the cheque examined by an hand-writing expert. On this count the petition does not have any force. ( 6. Other columns of the cheque may be filled in by anyone on the instructions of the petitioner himself and when the signatures on the cheque are not disputed then no useful purpose will be served by getting the cheque examined by an hand-writing expert. On this count the petition does not have any force. ( 6. ) So far as second petition is concerned, petitioner has examined himself before the Trial Court and has given his statement on oath describing all the circumstances under which the cheque was given but front the documents which have been filed by the petitioner it appears that he has also paid PF for one witness regarding whom it is argued that he was the witness of the transaction between the petitioner herein and Ankit Kumar. Reported Judgment of the Supreme Court in the case of Mrs. Kalyani Baskar Vs. Mrs. M.S.Sampoornam reported in 2007(1)DCR 168 has also been pressed in service but in that case the question was whether the cheque in question bears the signature of the accused or not? Signatures on the cheque were clearly denied and request was made to send the cheque for expert opinion which was denied by the Trial Court and that order was upheld even by the High Court then in these circumstances the appeal preferred by the accused was allowed by Honble Supreme Court and it was observed in paragraph no. 11 as under: 11. 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 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 u/S.243 of 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. ( 7. ) From the above observations it is clear that fair trial includes fair and proper opportunities allowed by law to prove the innocence of the accused and adducing the evidence in support of the defence is a valuable right. The request for leading defence evidence should be considered by the Magistrate unless he finds that object of the appellant is to vexatious or delaying the criminal proceedings. The request for leading defence evidence should be considered by the Magistrate unless he finds that object of the appellant is to vexatious or delaying the criminal proceedings. In the facts of the present case when the signatures on the cheque in question are admitted then sending the same for an expert opinion will be a futile exercise and this request clearly appears vexation for delaying the criminal proceedings. But so far as the request for examining a witness in support of the statement given by the petitioner herein is concerned, it appears reasonable and it should have been allowed by learned Magistrate, particularly when earlier petitioner was permitted to call such witness and process fees was also paid by him for securing attendance of that witness. ( 8. ) Learned counsel for the respondent placed reliance on reported judgment of this Court in Sanjay Vs. Rajeev 2007(2) M.P.H.T. 182 . In that case also request was made for calling the bank record and to get the cheque examined by the hand-writing expert. Both these prayers were found just delaying tactics and that petition was dismissed observing that the signatures of the cheque are admitted in that case and the bank record is not relevant for the purpose of disposal of the case. It was also observed that that petition was filed in the garb of provisions of S .482 of Cr.P.C. was in fact a second revision petition. In the facts of the present case so far as M.Cr.C. No. 4067/07 is concerned in the view of the pronouncement of Supreme Court in the case of Mrs. Kalyami Baskar (supra) this petition deserves to be and is allowed. Whereas M.Cr.C. No. 4316/07 deserves to be dismissed as signatures on the cheque are admitted. ( 9. ) Resultantly M.Cr.C. No. 4316/07 has no force and is hereby dismissed. M.Cr.C. No. 4067/07 is allowed and in the interest of justice petitioner/accused is permitted to call the defence witness in support of his defence. Learned trial Magistrate is directed to provide one opportunity to the petitioner to get the said witness summoned and be examined in support of the defence raised by him in the criminal case. ( 10. ) With these observations both these petitions are disposed of. Copy of this order be retained in M.Cr.C. No. 4316/07. Petitions disposed of.