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2009 DIGILAW 2019 (MAD)

P. Rajendran v. K. K. Palanisamy

2009-07-01

C.S.KARNAN

body2009
Judgment :- The petitioner has filed this Criminal Original Petition to set aside the order of the learned Judicial Magistrate No.VIII, Coimbatore, passed in Crl.M.P.No.1599 of 2006 in C.C.No.241 of 2004 on 08.09.2006, which was confirmed by the Additional District and Sessions Judge, Fast Track Court Judge, Coimbatore, in Crl.R.P.No.90 of 2006 on 011. 2006. .2. It is averred by the petitioner that in the Criminal Miscellaneous Petition No.483 of 2005, filed by him, the learned Magistrate appointed a Commissioner to hand over a cheque to forensic department for signature verification as the signature found in his cheque was not that of the petitioner; that the trial Court granted a months time to deposit the Commissioners and Experts fees. It is the further averment of the petitioner that due to loss in his business, he was not able to deposit the fees in the trial Court and hence the trial Court closed his petition. The petitioner filed an application to reopen the petition and the trial Court did not consider it. Hence, the petitioner filed Crl.R.P.No.90 of 2006 before the Additional District and Sessions Judge, Fast Track Court No.II, Coimbatore. The appellate Court dismissed the Revision Petition stating that the Court had ample power to verify the signature and the petitioner alone is dragging the case. 3. The grievance of the petitioner is that before the trial Court, he raised an objection that the cheque was not signed by him and hence he filed a petition for sending the cheque to the expert for signature analysis. Since the petitioner was not able to deposit the fees on time, the petition was closed. The petitioner further states that a vital point raised by him which is in his favour was curtailed by the Courts below and this is against the cannons of human justice. Hence, he prays for setting aside the order of the Court below by way of this petition. 4. When the matter was taken up, the counsel on both sides were absent and the matter was posted for orders. 5. From the averments contained in the affidavit of the petitioner, it is seen that, in C.C.No.241 of 2004 on the file of the Judicial Magistrate, No.VIII of Coimbatore, after the commencement of the examination of the prosecution witnesses, the petitioner has preferred the Crl.R.P.No.90 of 2006 before the Appellate Court. 5. From the averments contained in the affidavit of the petitioner, it is seen that, in C.C.No.241 of 2004 on the file of the Judicial Magistrate, No.VIII of Coimbatore, after the commencement of the examination of the prosecution witnesses, the petitioner has preferred the Crl.R.P.No.90 of 2006 before the Appellate Court. It is observed by the Appellate Court that even though the petitioner was directed to deposit the expert fees pursuant to the order dated 07.04.2005, such deposit was not made by the petitioner inspite of many opportunities having been given to him for this purpose, that as per the evidence side, the Court has got power to verify the signatures and the experts opinion need not be considered as final and if at all the experts evidence is taken, it can be considered only as an additional evidence in the case and hence the order of the trial Court need not be interfered with and I accordingly confirm the same. .6. I have gone through the materials available before me in this Criminal Original Petition. When the petitioner herein, has specifically made an allegation that the signature found in the cheque is not his, it is a valid defence on his side and to prove such an allegation, the petitioner has wanted the trial Court to send the cheque to the expert for his opinion as to the genuineness of the signature found thereon. The trial Court has considered this request and asked the petitioner to deposit the requisite fees for sending the cheque to the experts for his opinion through a Commissioner appointed by the trial Court. The petitioner states that there was loss in his business and because of that he was not able to deposit the fees as ordered by the trial Court. Even though, the trial Court closed the petition as the amount was not paid on time, the petitioner has pursued his request by way of an application filed by him and when it was rejected by the trial Court, he has preferred the Criminal Revision Petition before the Appellate Court. Even though the Appellate Court has observed that Courts have power to verify the signatures, the Court cannot assume the role of an expert and any opinion arrived at by the Court itself comparing the signature cannot be said to be conclusive in nature. Even though the Appellate Court has observed that Courts have power to verify the signatures, the Court cannot assume the role of an expert and any opinion arrived at by the Court itself comparing the signature cannot be said to be conclusive in nature. Had the petitioner been given further time for deposit of fees and had the cheque been sent to the expert, the opinion of the expert would be available for perusal by the Court and his evidence also will prove whether the signature found in the cheque is genuine or not. Refusal of such opportunity to the petitioner is definitely prejudicial to him. 7. The trial Court granted fruitful order to the petitioner i.e., an appointment of an Advocate Commissioner and through him the disputed cheque to be sent to the forensic department for signature verification. The fruitful order granted by the learned Magistrate was with the condition that the petitioner should deposit the expert fees within one month, ie., from 16.06.2006 to 14.07.2006, to the Advocate Commissioner. This was not complied with by the petitioner within stipulated period as per court order. Hence, the petition was closed. Subsequently, the petitioner filed reopen petition stating that due to financial problems, he was not able to pay the amount. Further, he was categorically stated that he is a poor person. These reasons should be considered by the trial Court. Further, after getting expert opinion, the trial Court can render proper justice to the parties concerned without any lacuna. Just because the petitioner was not able to comply with the conditions in the fruitful order, the benefits from such an order should not be denied to him. The expert opinion might prove to be useful to the court to give proper justice. This would also serve as an additional opportunity to the petitioner and which is also not prejudicial to the opposite party. 8. In this view of the matter, the Criminal Original Petition is allowed. The order passed by the Courts below are set aside. The trial Court is directed to grant further reasonable time to the petitioner to deposit the expert fees and proceed with the case in accordance with law. 8. In this view of the matter, the Criminal Original Petition is allowed. The order passed by the Courts below are set aside. The trial Court is directed to grant further reasonable time to the petitioner to deposit the expert fees and proceed with the case in accordance with law. As the case is of the year 2004, the trial Court shall try to dispose of the matter within a period of six months from the date of receipt of a copy of the order by it.