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2009 DIGILAW 4414 (MAD)

K. Kannan v. Rohini Metals

2009-10-23

P.MURGESEN

body2009
Judgment : Even though this petition is listed for vacating the interim stay, by consent of both the learned counsel for the petitioner and the respondent, the main Criminal Revision Petition itself is taken up for final hearing and disposal. 2. Challenging the order dated 3.8.2009 of the Judicial Magistrate – No.II, Virudhunagar in Crl. M.F. No.2919 of 2009 in S.T.C.No.2475 of 2009, dismissing the petition to send the cheque for expert opinion, the revision petitioner has preferred this Criminal Revision Petition. 3. The revision petitioner herein is the second accused and the respondent herein is the Complainant in S.T.C.No.2475 of 2009. According to the respondent/complainant, the revision petitioner/accused has issued Cheque Nos.590364 dated 19.9.2007, 590365 dated 20.9.2007 and 590366 dated 21.9.2007 for the debt due to him and when the cheques were presented for collection, it were dishonored. Then, he issued a notice dated 26.11.2007 that the revision petitioner is liable to pay the amount, for which, the revision petitioner herein sent a reply on 29.11.2007, disputing the claim of the complainant and he asserted that the cheques were forged one. Thereafter, the complainant instituted a complaint under Section 13a of the Negotiable Instruments Act, against the revision petitioner herein. 4. According to the revision petitioner herein, the first accused is a partnership firm-under the name and style of “Sri Renga Fire Works”. One Venkatesan was the proprietor of Haris Pyrotecs situated in Kanmai Soorankudi village. Both of them had their business in the same premises. The revision petitioner stopped production and marketing fireworks from November 2006 and was keeping the Cheque Book containing the leaves bearing, Nos.590363 to 590400? He obtained the unused cheque leaves from State Bank of India, Mamsapuram Branch. He claimed that the said Venkatesan had access to the said cheques. The revision petitioner was informed by the bank officials that certain cheques had come for clearance. He went to the bank and came to know about the forgery of cheques, which was issued by Venkatesan. When he returned to his office and searched the cheques, he found that the said cheques were missing. Thereafter, he preferred a complaint on 24.11.2007 before the Sivakasi East Police Station, who treated it as a petition. He went to the bank and came to know about the forgery of cheques, which was issued by Venkatesan. When he returned to his office and searched the cheques, he found that the said cheques were missing. Thereafter, he preferred a complaint on 24.11.2007 before the Sivakasi East Police Station, who treated it as a petition. Aggrieved by the same, the revision petitioner has preferred a complaint before the learned Judicial Magistrate, at Sivakasi and obtained a direction under Section 156(3) Cr.P.C. Then, a case was registered for offences under Sections 380, 420, 468, 471 and 474 I.P.C. by Sivakasi East Police Station in Crime No.751 of 2007. The revision petitioner filed a petition before this Court and obtained a direction to the police to complete the investigation. After filing of the final report, the case was taken on file in C.C.No.88 of 2008. The petitioner also filed a protest petition under Section 173(8) Cr.P.C, for further investigation and the same is still pending. The Police, Sivakasi seized the cheques bearing Nos.590384, 590376, 590381, 590382 and 590374 and sent them for expert opinion, which is to the effect that they were forged. The cheques in question viz. Cheque Nos.590364 dated 19.9.2007, 590365 dated 20.09.2007 and 590366 dated 21.9.2007 were not sent for expert opinion. Hence, the revision petitioner filed a petition in Crl.O.P.(MD).No.5455 of 2008 before this Court. This Court, by an order dated 25.11.2008, while disposing of the said petition, had observed as follows: “7. ….. In view of the defence of the petitioner to the effect that the cheque book was taken and misused for filing the above said cases under Section 138 of Negotiable Instruments Act, it is open to the petitioner to seek the remedy by filing the above said petition before the learned Judicial Magistrate and in the event of filing such petition, the learned Magistrate shall consider the same and pass order, on merits in accordance with law…..” Before the closure of evidence on the side of the complainant, the petitioner herein has preferred a petition in Crl.M.P.No.767 of 2009, under Section 45 of the Evidence Act and the said petition was dismissed on 24.6.2009. After disposal of the said petition, enquiry in the main case was resumed and the revision petitioner was questioned under Section 313 Cr.P.C. At that stage, the revision petitioner has filed the petition in Crl.M.P.No.2919 of 2009 in S.T.C.No.2475 of 2009 to send the cheques for expert opinion to prove his case that the same were not issued by him for a legally enforceable debt. However, the learned Judicial Magistrate. No.III Virudhunagar, by the impugned order, by holding that this is the second attempt of the petitioners to send the cheques for experts opinion, dismissed the petition. Hence, this criminal revision petition. 5. I have heard the submissions of the learned counsel for the petitioner and the learned counsel appearing for the respondent. 6. Mr. G. Marimuthu learned counsel appearing for the petitioner would submit that from the very beginning, the revision petitioner would contend that his purported signature is a forged one and therefore the Court below ought not to have rejected his prayer to send the cheques in question for expert opinion. According to the learned counsel for the petitioner, the revision petitioner cannot be debarred from entering upon his defence and produce his evidence without deciding the genuineness of the signature on the cheque in question and the dismissal of the petition by the Magistrate has caused miscarriage of justice to the petitioner. While concluding his argument, the learned counsel for the petitioner has prayed that this Court may take a lenient view of the matter and one more opportunity could be given to the petitioner to establish his case. In support of his contentions, he has relied upon the decisions L.C. Goyal v. Suresh Joshi AIR 1999 SC 2222 , Kalyani Baskar v. M.S. Sampoornam (2007) 1 SCC (Cri) 577 : (2007) 1 MLJ (Crl) 1020 and Muniraj v. Velu (2009) 3 MLJ (Crl) 865. 7. Mr. G. Narayanasamy, the learned counsel appearing for the respondent would vehemently argue that this criminal revision petition is not maintainable. He would submit that when the first petition filed by the revision petitioner in Crl.M.P.No.767 of 2009 under Section 45 of the Evidence Act was dismissed on 24.6.2009, the petitioner is not entitled to file another petition for the very same prayer and therefore, the impugned order of the learned Magistrate is perfect, which needs no interference at the hands of this Court. In support of his contention, he has relied upon the decision Sathyamoorthy v. A.C. Palanisamy (2009) 2 MWN (CR.) DCC 106. In the above said case, the accused filed Cri.M.P.No.202 of 2005 for taking the assistance of a hand writing expert to compare the disputed signature in the cheque with that of his admitted signature and the said petition was dismissed. However, subsequently, he filed another petition in Crl.M.P.No.6362 of 2005 and the same was allowed. In the facts and circumstances of the case, my learned Brother G. Rajasuria, J. was of the view that after dismissal of the earlier application for taking such assistance, subsequent application on same ground cannot be entertained and allowed the revision, by setting aside the order of the Trial Court. 8. The learned counsel for the respondent has also relied upon the decision Subramanium Sethuraman v. State of Maharashtra and Another AIR 2004 SC 4711 : (2005) SCC (Cri) 242. In the said case, the Supreme Court observed that issuance of process under Section 204 is a preliminary step in trial and is therefore an interlocutory order and the same cannot be reviewed, reconsidered or recalled by the Magistrate, there being no provision therefor in the Code and the only remedy available to an aggrieved accused is the extraordinary remedy under Section 482 and not by way of application to recall the summons or to seek discharge. 9. In Kalyani Baskar v. M.S. Sampoornam (supra), the accused made a prayer to send the cheque for opinion of handwriting expert to ascertain genuineness of signature on it. The learned Magistrate dismissed the said application on the ground that it was not mandatory that every disputed document or signature must be sent to an expert for opinion that the original document filed in the Court cannot be sent out for any reason and that every document filed before the Courts should be safe till the disposal of the litigation and the genuineness of the signature could be questioned only at the time of trial of the complaint. Under such circumstances, the Supreme Court held as follows (2007) 1 MLJ (Crl) 1020 at p. 1023: “12. Under such circumstances, the Supreme Court held as follows (2007) 1 MLJ (Crl) 1020 at p. 1023: “12. Section 243(2) is clear that a Magistrate holding an inquiry under 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 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….” In the above said case, the Supreme Court has pointed out that the right of the accused to adduce evidence in support of the defence is a valuable right and denial of that right means denial of fair trial. 10. In Sathyamoorthy v. A.C. Palanisamy (supra), my learned Brother G. Rajasuria, J. was of the view that after dismissal of the earlier application, subsequent application on same ground cannot be entertained. In the said case, in paragraph 5, it was observed as follows: “5. On the respondent’s side absolutely there is no explanation forthcoming as to what right the accused had in filing Crl.M.P.No.8362 of 2005, after meeting his Water loo in the previous Crl.M.P.No.202 of 2005”. In the said case, in paragraph 5, it was observed as follows: “5. On the respondent’s side absolutely there is no explanation forthcoming as to what right the accused had in filing Crl.M.P.No.8362 of 2005, after meeting his Water loo in the previous Crl.M.P.No.202 of 2005”. But, in Kalyani Baskar v. M.S. Sampoornam (supra), the Supreme Court has pointed out that the accused has got valuable right under Section 243(2) Cr.P.C, and so he has got valuable right to establish his defence and rebut the case of the complainant. Even in Muniraj v. Velu (supra), considering the contention of the petitioner that the purported signature is a forged one, G. Rajasuria, J. held that the Trial Court should have granted the request for sending the cheque in question for the opinion of the handwriting expert. Considering the two decisions in Sathyamoorthy v. A.C. Palanisamy (supra) and Muniraj v. Velu (supra) and also the decision of the Hon’ble Supreme Court in Kalyani Baskar v. M.S. Sampoornam (supra), I am of the considered opinion that the subsequent filing of the petition in a different stage on the basis of the right conferred under the Act cannot be brushed aside. With due respect, I am of the view that the ruling in Sathyamoorthy v. A.C. Palanisamy (supra) is not applicable to the case on hand. Even the right of the accused under Section 243(2) Cr.P.C, upheld in Kalyani Baskar v. M. Sampoornam (supra) was relied on in Muniraj v. Velu (supra). 11. The learned counsel for the respondent further relied on the decision Shashi Kumar Banerjee v. Subodh Kumar Banerjee AIR 1964 SC 529 wherein it was observed that the expert’s evidence as to handwriting is opinion evidence and it can rarely, if ever take the place of substantive evidence. Before acting on such evidence, it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. 12. However, in this case, it is the definite stand of the revision petitioner from the very beginning that the cheques were forged one. It is to be noted that the trial is not over. The evidence on the side of the revision petitioner has to commence. Hence, at this stage, it cannot be held that the expert opinion is not necessary, which is helpful to the revision petitioner. 13. It is to be noted that the trial is not over. The evidence on the side of the revision petitioner has to commence. Hence, at this stage, it cannot be held that the expert opinion is not necessary, which is helpful to the revision petitioner. 13. The learned counsel for the respondent would submit that there is no complaint against the respondent and so, the question of sending the cheques in question to the opinion of the handwriting expert does not arise at all. When the revision petitioner came to know about the forgery of cheques, which were issued, by Venkatesan, he preferred the complaint on 24.11.2007, much prior to the issuance of notice by the respondent herein. At this juncture, he was not aware of the same and, therefore, it can be decided only at the time of trial. In my considered opinion, no prejudice would be caused, to the respondent if the request of the revision petitioner for pending the cheque for expert opinion is acceded to. 14. Accordingly, this criminal revision petition is allowed and the impugned order dated 3.8.2009 of the Judicial Magistrate No.II, Virudhunagar in Crl.M.P.No.2919 of 2009 in S.T.C.No.2475 of 2009 is set aside. Both parties are directed to co-operate with the Court for quick disposal. The Court below is directed to complete the Trial and dispose of the matter on merits and in accordance with law, within a period of six months from the date of receipt of a copy of this order. The Trial Court need not be carried away by any observations made in this order. No costs. Consequently, the connected M.P.Nos.1 and 2 of 2009 are closed.