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2010 DIGILAW 5011 (MAD)

R. Lakshmikanthan v. K. Senthilkumar

2010-11-12

G.M.AKBAR ALI

body2010
Judgment :- 1. This Petition is filed seeking a direction to set aside the order dated 5.1.2006 passed by the learned Additional District and Sessions Judge, F.T.S.C. No.1, Coimbatore in Crl.R.P. No 164 of 2005 confirming the order of the learned Judicial Magistrate No.II, Udumalpettai dated 20.10.2005 in 2. The Petitioner is an accused in C.C. No. 33 of 2005, taken on the file by the learned Judicial Magistrate No.II, Udumalpettai, based on a private Complaint under Section 138 of Negotiable Instruments Act for the dishonour of a cheque dated 4.1.2005, alleged to have been issued by the Petitioner for a sum of Rs.4,00,000/- towards his debt. The Petitioner filed the above Miscellaneous Petition No.2961 of 2005 to send the document for examination by handwriting expert as he took a defence that his signature was forged. 3. The learned Judicial Magistrate dismissed the Application on the ground that the Petitioner has not taken such defence on receipt of the statutory notice and he has filed the Petition only to drag on the matter as the trail was at progress. Aggrieved against the said order, the Petitioner preferred a Revision in Crl.R.C. No.164 of 2005 before the learned Additional District Judge, Coimbatore. 4. The learned Additional District Judge-cum-Fast Track Court No.I, Coimbatore, dismissed the Revision on the same ground and thereby aggrieved the Petitioner is before this Court by way of invoking the provision under Section 482, Cr.P.C. 5. Mr. S. Vijayakumar, learned Counsel for the Petitioner would submit that the Courts below have erred in dismissing the Application filed under Section 45 of the Indian Evidence Act seeking permission to send the cheque for handwriting expert opinion. 6. The learned Counsel pointed out that a comparison of the signatures would prove that the signature found in the cheque is not that of the Petitioner. The learned Counsel pointed out that only through an handwriting expert, the said fact can be proved and therefore, the Petitioner is entitled for the relief. 7. On the contrary, Mr. C. Chidambara Swamy, the learned Counsel for the Respondent submitted that the Petitioner did not deny his signature at the earliest point of time and therefore, the Courts below have rightly dismissed the Application. 8. 7. On the contrary, Mr. C. Chidambara Swamy, the learned Counsel for the Respondent submitted that the Petitioner did not deny his signature at the earliest point of time and therefore, the Courts below have rightly dismissed the Application. 8. The learned Counsel for the Petitioner relied on a decision reported in Kalyani Baskar v. M.S. Sampornam, 2007 (2) CTC 364 (SC) : 2007 (1) Crimes 106 (SC), wherein, the Supreme Court, in similar circumstances held: “Where accused in a cheque bouncing case prayed to Magistrate to send cheque in question for examination by handwriting expert to ascertain genuineness of signatures, as a fair trail request should have been allowed in exercise of power under Section 243(2), Cr.P.C.” 9. The learned Counsel relied on a decision reported in P.R. Ramakrishnan vs. P. Govindarajan, 2007 Crl.L.J. 1897, wherein the Court has followed the above said decision and has ordered to send the cheque for the opinion of the handwriting expert. 10. Heard and perused the materials available on record. 11. The case of the Respondent is that the Petitioner had borrowed a sum of Rs.4,00,000/- on 4.10.2004 and issued a cheque dated 3.1.2005 and the same was deposited in the Bank on 4.1.2005 and returned for “insufficient funds” on 5.1.2005. According to the Respondent, she issued a statutory notice which was served on the Petitioner for which the Respondent sent a reply. 12. However, during the trail, a defence was taken that the Respondent has forged the signature of the Petitioner. At that stage, the Petitioner has filed the above Application to send the cheque for expert’s opinion. Section 243 of Cr.P.C. reads as follows: “243. Evidence for defence: (1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any Written Statement, the Magistrate shall file it with the record. Section 243 of Cr.P.C. reads as follows: “243. Evidence for defence: (1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any Written Statement, the Magistrate shall file it with the record. (2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue an process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such Application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing: Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice. (3) The Magistrate may, before summoning any witness on an Application under sub-section (2), requires that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court. 13. In Kalyani Baskar v. M.S. Sampornam, 2007 (2) CTC 364 (SC): 2007 (1) Crimes 106 (SC), the Supreme Court has held that the drawer was entitled to rebut the case of the Respondent and denial of such right amounted to denial of fair trail. The same principle is followed in the case of P.R. Ramakrishnan v. P. Govindarajan, 2007 Crl.L.J. 1897. So far as the facts covered by the latter case-law, the learned Magistrate has dismissed the Petition on the ground that the Petitioner therein has come forward with belated Petition. Under such circumstances, this Court has held that the learned Magistrate should have granted such a request unless he thinks that the intention of the Appellant was to delay the Criminal proceedings. 14. Under such circumstances, this Court has held that the learned Magistrate should have granted such a request unless he thinks that the intention of the Appellant was to delay the Criminal proceedings. 14. Therefore, whenever an accused disputes his signature in the alleged cheque and takes such defence and if he has come forward with the Petition for sending the same for experts’ opinion under Section 45 of the Evidence Act, the learned Magistrate shall send the disputed cheque for comparing the same with the admitted signature of the accused unless he considers that such Application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of Justice and such ground shall be recorded by him in writing. The accused is entitled to rebut the case of the Complainant and the denial of such right amounts of denial of fair trail. 15. The Complaint was filed as early as during 2005 and P.W.1 was examined on 13.4.2005 and on completion of the Complainant’s evidence, the Petitioner came forward with the Application on 30.6.2005. Both the Courts have denied such right to the Petitioner which made the Petitioner to approach this Court for invoking the powers under Section 482, Cr.P.C. Had the Courts below allowed the Petition in the year 2005 itself, the case would not have been pending till 2010. The delay is not due to the parties concerned. Therefore, I am of the considered view that the Petitioner has a right to rebut the case of the Respondent by sending the document for examination by handwriting expert. 16. In the result, the Criminal Original Petition is allowed and the impugned orders of the Courts below are set aside and the learned Judicial Magistrate No.II, Udumalpettai is directed to send the cheque along with the admitted signature of the Petitioner to the handwriting expert for opinion immediately after the receipt of the order and dispose of the case as expeditiously as possible. Consequently, connected M.P. is closed.