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Madhya Pradesh High Court · body

2009 DIGILAW 57 (MP)

Mukesh Goyal v. Yasin Patel

2009-01-12

S.S.DWIVEDI

body2009
JUDGMENT : S.S. Dwivedi , J.- Theapplicant/accused has filed this petition under Section 482, Cr.P.C . for setting aside of the impugned order dated 18.8.2008 passed by JMFC Indore in Criminal Case No. 1977/07 whereby rejected the application filed under Section 45 of the EvidenceAct for sending the disputed cheque for examinationby the handwriting expert. 2.Briefly stated the facts of the case are that the applicant/accused is facingtrial under Section 138 of the Negotiable Instruments Act (hereinafter referredto as the "N.I. Act" for brevity) before the JMFC Indore .In this case, at the defence stage theapplicant/accused has filed an application under Section 45 of the EvidenceAct, praying that the disputed cheque be sent forexamination by the handwriting expert with regard to the difference of writingsin the signature as well as in the operative part of the cheque concerned. Learned Trial Court after hearing both the parties by the impugnedorder dated 18.8.2008 dismissed the application; aggrieved by which theapplicant has preferred Criminal Revision No. 591/08 before the Sessions Judge, Indore . The learned Revisional Court has alsorejected the revision petition; aggrieved by which the applicant/accused hascome up before this Court by this petition under Section 482, Cr.P.C . 3.Having heard learned counsel for the parties and perused the record. 4.It is submitted by learned counsel for the applicant that it is on record bythe statement of defence witness Shriram (DW-1) that the disputed cheque is from a cheque book issued in the year 1997 by the bank concernedwhereas on that cheque the date of issuance ismentioned as 2003, which is forged one and the complainant is misusing theblank cheque issued by the applicant with regard tothe surety of the amount concerned which he had already paid to the complainantand to prove the aforesaid facts the applicant/accused has filed the aforesaidapplication under Section 45 of the Evidence Act for examination of thedisputed cheque by some handwriting expert so thatthe difference in between the writing of signature and the writing of othermaterial on the cheque can be examined by thehandwriting expert. The learned Trial Court has wrongly rejected the aforesaidapplication and thereby denied the valuable right of the applicant/accusedrebut the complainant's case and thereby committed gross mistake, therefore,prayed for setting aside of the impugned order passed by the Court below andfor a direction for examination of the disputed cheque by some handwriting expert. The learned Trial Court has wrongly rejected the aforesaidapplication and thereby denied the valuable right of the applicant/accusedrebut the complainant's case and thereby committed gross mistake, therefore,prayed for setting aside of the impugned order passed by the Court below andfor a direction for examination of the disputed cheque by some handwriting expert. 5.Learned counsel appearing on behalf of the complainant supported the impugnedorder and submits that if the applicant/accused has admitted the signature onthe disputed cheque then certainly he has no right tochallenge the operative part of the cheque concernedfor which a legal presumption ought to be drawn as per provision of Section 20of N.I. Act and in such circumstances there is no necessity for sending cheque for examination by the handwriting expert and byrejecting the aforesaid application the Trial Court has not committed anyillegality, on which basis the impugned order can be set aside. Therefore,prayed for dismissal of the petition. 6.After consideration on the rival contention of both the counsel it is apparentthat the applicant/accused has admitted his signature on the disputed cheque then certainly the presumption arises as perprovisions of Section 20 of the NI Act with regard to the fact that the cheque had been issued by the signatory after filling itproperly but in the present case the circumstances are having different aspect.The defence witness Shriram (DW-1) examined by the accused had clearly stated that the disputed cheque belonged to a cheque bookissued by the bank in the year 1997 whereas the date mentioned in the cheque is of the year 2003. He also admitted the fact itmakes no difference that from a cheque book issued inthe year 1997 a cheque can be issued in the year 2003and this cheque cannot be disowned only on the basisof the fact that the cheque belongs to a cheque book issued in the year 1997 but in view of that thefact remains for consideration as to whether the cheque had been issued in the year 1997 or 2003 itself, which date is mentioned in the cheque concerned and to prove the aforesaid fact theapplicant/accused has applied for examination of the cheque by some handwriting expert, who can opinion as to whether the writing ofsignature as well as other writing over the cheque had been written on the same date or having different age of writing. 7.For this proposition learned counsel for the applicant placed reliance on thedecision of the Hon'ble Apex Court in case of T. Nagappavs .Y.R. Muralidhar , reported in 2008 AIR SCW 3349 = 2008(1) ANJ (SC) 379, wherein in the same circumstances wherein the age of writingof the cheque as well as signature of the accused arein dispute, the Hon'ble Apex Court allowed the appealand directed examination of the cheque by somehandwriting expert so that the age of both the writings can be ascertained andheld here as under: "Thelearned Trial Judge as also the High Court rejected the contention of theappellant only having regard to the provisions of Section 20 of the NegotiableInstruments Act. The very fact that by reason thereof, only aprima facie right had been conferred upon the holder of the negotiable instrument andthe same being subject to the conditions as noticed hereinbefore, we are of theopinion that the application filed by the appellant was bonafide . Theissue now almost stands concluded by a decision of this Court in Kalyani Baskar (Mrs.) vs. M.S. Sampoornam (Mrs.) (2007) 2 SCC 258 = 2007 (1) ANJ (SC) 308,wherein it was held: "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 ofjustice, he directs to send the document for enabling the same to be comparedby a handwriting expert to compare the disputed signature or writing with theadmitted writing or signature of the accused and to reach his own conclusionwith the assistance of the expert. The appellant is entitled to rebut the caseof the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedingsagainst the appellant would furnish good material for rebutting that case, theMagistrate having declined to send the document for the examination and opinionof the handwriting expert has deprived the appellant an opportunity ofrebutting it. The appellant cannot be convicted without an opportunity beinggiven to her to present her evidence and if it is denied to her, there is nofair trial, "Fair trial" includes fair andproper opportunities allowed by law to prove her innocence. Adducing evidencein support of the defende is a valuable right. Denialof that right means denial of fair trial. The appellant cannot be convicted without an opportunity beinggiven to her to present her evidence and if it is denied to her, there is nofair trial, "Fair trial" includes fair andproper opportunities allowed by law to prove her innocence. Adducing evidencein support of the defende is a valuable right. Denialof that right means denial of fair trial. It is essential that rules ofprocedure designed to ensure justice should be scrupulously followed, and theCourts should be jealous in seeing that there is no breach of them. " 10.However, it is not necessary to have any expert opinion on the question otherthan the following: "Whetherthe writings appearing in the said cheque on thefront page is written on the same day and time the said cheque was signed as "T. Nagappa " on the frontpage as well as on the reverse, or in other words, whether the age of thewriting on Ex. P/2 on the front page is the same as that of the signature"T. Nagappa " appearing on the front as wellas on the reverse of the cheque Ex. P/2?" 8.On the basis of the aforesaid law laid down by the Hon'ble Apex Court , the factsof the present case also appear to be same wherein the applicant/accused is takinga defence that the cheque has been signed in the year 1997 and it has been forged by the complainant bywriting the year 2003. Therefore, it will be a beneficial evidence in favour of the applicant/accused to ascertain the age ofboth the writings, signature of the applicant as well as other remainingwriting on the cheque concerned, and by rejecting theaforesaid application for examination of the cheque in question by some handwriting expert the applicant/accused has been deprivedof his valuable right for fair trial and right to rebut the complainants case. 9.Learned counsel for the respondent/complainant has placed reliance on thedecision in the case of K.Bhaskaran vs. Shankaran Vidyanabalan , reportedin 2000 (1) MPLJ1 = 2000 (1) ANJ (SC) 147, which has also been relied by the Hon'ble Apex Court in the aforesaid decision of T. Nagappa (supra). 9.Learned counsel for the respondent/complainant has placed reliance on thedecision in the case of K.Bhaskaran vs. Shankaran Vidyanabalan , reportedin 2000 (1) MPLJ1 = 2000 (1) ANJ (SC) 147, which has also been relied by the Hon'ble Apex Court in the aforesaid decision of T. Nagappa (supra). Similarly, he also placed reliance on thedecision in the case of Hi Margoda vs. Thipamma , reported in AIR 2000 Karnataka 169, and MohammadAll vs. Abdul, reported in AIR 2001 Madras 216, wherein it is held that"if the signature on the cheque has beenadmitted by the signatory then a presumption under Section 20 of the NI Act isavailable in favour of the complainant." 10.In the facts of the present case it is apparent that the applicant has beendeprived of the right to prove the fact that initially the cheque had been issued in the year 1997 and it has been forged by the complainant bywrongly mentioning the date as in the year 2003' on the cheque ,therefore, the age of writing on the disputed cheque is material for determination of the rights of the applicant/accused and insuch circumstances, as held by the Hon'ble Apex Courtin T. Nagappa's case (supra) the applicant isentitled to get the cheque examined by thehandwriting expert and ascertained the age of both the writings. 11.Resultantly, the petition filed by the applicant is allowed. The impugned orderpassed by the Trial Court is set aside and it is directed that the Trial Courtwill call the handwriting expert for examination of the cheque concerned with a view to ascertain the age of writings on the disputed cheque as to whether both the writings are of the sameperiod or of different period. After obtaining report and recording of thestatement of the handwriting expert the Trial Court will proceed with the trialaccording to law. The costs of the handwriting expert will be borne by theapplicant/accused. 12.With this direction, the petition is disposed of.