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2009 DIGILAW 4834 (MAD)

D. Rangarajan v. A. Abdul Rahim

2009-11-11

S.TAMILVANAN

body2009
Judgment :- This criminal revision petition has been filed by the petitioner challenging the order of dismissal dated 27.04.2009 made in Crl.M.P.No.2657 of 2008 in C.C.No.2548 of 2007 on the file of the learned II Metropolitan Magistrate, Egmore, Chennai. 2. Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondent. 3. It is not in dispute that the respondent herein had filed a complaint against the petitioner herein under Sections 138 r/w 142 of the Negotiable Instruments Act as amended read with Sections 200 and 357 of the code of the criminal procedure. This case was taken on the file of the Court below and after examination of prosecution witnesses, the same was posted for questioning the accused under Section 313 Cr.P.C. At that stage, the petitioner/accused has come forward with a petition under Section 45 of the Indian Evidence Act with a prayer to send the disputed cheques i.e. Ex.P.1 and Ex.P.2 to the Hand Writing Expert, Forensic Lab, Chennai-4 in order to prove that the signature was forged. The same was dismissed by the Court below. Aggrieved by which, this revision has been preferred by the petitioner/accused. .4. Mr.R.Sivaprakasam, learned counsel appearing for the petitioner submitted that the Court below has dismissed the petition without giving an opportunity in sending the disputed cheques to the Handwriting Expert to compare the disputed signatures contained in Exs.P1 and P2 with that of the admitted signatures of the petitioner. In support of his contention, learned counsel relied on a decision reported in "2007 (2) STC page 364" made in "Kalyani Baskar v. M.S.Sampoornam". In the case referred by the learned counsel for the petitioner, the Honble Supreme Court held that the appellant therein, at the initial stage of her appearance before the Magistrate had filed an application under Section 245 Cr.P.C, in which, the appellant therein denied the signature on the chque and its delivery to the respondent besides raising other preliminary objections in opposition to the complaint filed by the respondent under Section 138 of the Act. However, the said application was dismissed by the Magistrate on the ground that the genuineness of the signature can be questioned only at the time of the trial. However, the said application was dismissed by the Magistrate on the ground that the genuineness of the signature can be questioned only at the time of the trial. However, in the aforesaid decision, the Honble Supreme Court has held as follows; ."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." .5. Learned counsel appearing for the respondent submitted that though the legal notice sent by the respondent was received by the petitioner prior to the filing of the complaint, there was no reply from the petitioner and further after filing of the criminal complaint, the petitioner herein appeared through his counsel and after denial, prosecution witnesses were examined and after closure of the prosecution evidence, when the case was posted for questioning the petitioner under Section 313 Cr.P.C., the petitioner has come forward with this petition seeking a direction to send the dishonored cheques for comparison of signature without any justifiable reason and hence, the petition is not legally sustainable and accordingly, the Court below has rightly dismissed the said petition, which requires no interference. Learned counsel appearing for the respondent relied on the decision in the case of "V.SRINIVASAN v. E.S.GUNASEKAR" reported in (2009) 2 MLJ (Crl.) 586, wherein this Court following the decision rendered by the Honble Apex Court in the case of Kalyani Baskar v. M.S.Sampoornam reported in "2007 (2) STC page 364", held that the petition filed by the revision petitioner is not maintainable, since he had not disputed the signature and issuance of cheque by way of reply notice prior to the filing of the complaint and not taken any steps after receiving the Court notice and the prosecution evidence was over. In such circumstances, this Court is of the view that the petition filed by the petitioner at the belated stage, is only delay tactics adopted by the petitioner/accused. In the present case, I am of the view that the facts and circumstances of the case are one and the same as the signature in the cheques is not disputed. .6. In such circumstances, this Court is of the view that the petition filed by the petitioner at the belated stage, is only delay tactics adopted by the petitioner/accused. In the present case, I am of the view that the facts and circumstances of the case are one and the same as the signature in the cheques is not disputed. .6. Though the petitioner herein had borrowed a sum of Rs.4,00,000/-, for which, he issued two cheques for Rs.2,00,000/-each, it is not in dispute that the cheques were returned by the bank due to "insufficient funds" and not on the ground of the signature differs from the signature of the account holder. The petitioner having received the legal notice sent by the respondent prior to the filing of complaint under Section 138 of Negotiable Instruments Act, could have sent his reply disputing the signatures in the dishonored cheques, Exs.P1 and P2. Further, after the case taken on file, notice was sent to the petitioner and the case therein was posted for Trial. Therefore, it is clear that the petitioner was put on notice about the case filed by the respondent herein. However, the petitioner had not chosen to file any petition seeking a direction to send the dishonored cheques for comparison of the disputed signatures with that of the admitted signatures of the petitioner herein. Even in cross examination of P.W.1, as contended by the learned counsel appearing for the respondent, no question was put to the witness disputing the signature by the petitioner herein. After the prosecution evidence was over when the case was posted for questioning the petitioner/accused under Section 313 Cr.P.C., at the belated stage the petition relating to the impugned order was filed hence there is no error on the part of the Court below to draw the inference that this petitioner/accused is adopting logical tactics to delay the proceedings and therefore, in the light of the decision cited above, I am of the view that there is no error in respect of the impugned order of the Court below so as to warrant any interference of this Court. 7. Accordingly, the Criminal Revision Petition is dismissed. 7. Accordingly, the Criminal Revision Petition is dismissed. However, the Court below is directed to dispose the case solely on merits uninfluenced by the finding of this Court in the revision petition, within a period of two months from the date of receipt of a copy of this order.