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2009 DIGILAW 4507 (MAD)

A. Jesudhasan v. N. Gopi

2009-10-27

P.MURGESEN

body2009
Judgment :- This Criminal Revision Petition has been filed challenging the order passed in Crl.M.P. No.3564 of 2008 in S.T.C. No.6071 of 2003 dated 06.08.2008 on the file of the Judicial Magistrate No.II, Nagercoil, Kanyakumari District. 2. The petitioner is the accused and the respondent is the complainant. 3. The respondent / complainant preferred a complaint under Sections 138 and 142 of the Negotiable Instruments Act before the learned Judicial Magistrate No.II, Nagercoil. The petitioner filed a petition in Cr.M.P. No.7371 of 2006 under Section 73 of the Evidence Act, before the Judicial Magistrate Court No.II, Nagercoil, to send the documents for the opinion of an expert. 4. Learned Judicial Magistrate No.II, Nagercoil dismissed the petition filed by the petitioner. 5. Challenging the dismissal of the petition by the Trial Court, the present Criminal R.C. has been filed by the petitioner herein. 6. It is the definite stand of the petitioner that the cheques were stolen from him and used by the respondent. Therefore, the counsel for the petitioner prays that the petitioner has right to send the documents for examination by an expert. He relied on the decision of the Hon'ble Supreme Court in the case of Kalyani Baskar v. M.S.Sampoornam, reported in 2007 (2) CTC 364 in support of his contention. 7. In the case of P.R. Ramakrishnan v. P.Govindarajan, reported in 2007 CRI. L.J. 1897, it was held that the Magistrate shall send the disputed cheque for comparing the same with admitted signature of accused to handwriting expert. In the present case, the petitioner is entitled to rebut the case of the respondent and if the cheque on which the respondent has relied upon for initiating criminal proceedings against the petitioner 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 petitioner of an opportunity of rebutting it. The petitioner cannot be convicted without an opportunity being given to him to present his evidence and if it is denied to him, there is no fair trial. 'Fair trial' includes fair and proper opportunities allowed by law and prove his innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. 'Fair trial' includes fair and proper opportunities allowed by law and prove his 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. The petitioner in this case requests for sending the cheque in question, for the opinion of an expert. The Magistrate should have granted such a request unless he thinks that the object of the petitioner is vexatious or delaying the criminal proceedings. In 2007 CRI. L.J. 1897, the right of the accused to send the documents for expert's opinion was upheld. 8. Having tested the present case in the light of P.R.Ramakrishnan's case (cited supra), I am of the considered view that the order of the learned Judicial Magistrate No.II, Nagercoil, Kanyakumari District, impugned in this Revision, is not correct and accordingly it is set aside and the matter is remitted back to him. 9. Learned Judicial Magistrate No.II, Nagercoil, Kanyakumari District will dispose of the matter in accordance with law. 10. The Criminal R.C. is disposed of accordingly. Consequently, M.P.(MD)No.1 of 2008 is closed.