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2012 DIGILAW 4416 (MAD)

K. Ramaraj v. N. Murugavel

2012-10-19

C.S.KARNAN

body2012
Judgment :- 1. The revision petitioner / petitioner/ accused has preferred the present revision in Crl.R.C.No.1961 of 2007, against the order made in C.M.P.No.9098 of 2007 in C.C.No.105 of 2006, dated 06.12.2007, on the file of Judicial Magistrate-I, Coimbatore. 2. The short facts of the case are as follows:- The accused had borrowed a sum of Rs.1,00,000/-from the complainant on 19.07.2002, for his urgent family expenses and executed a pronote agreeing to pay the said sum with interest at the rate of 12% per annum. The accused paid the interest upto year 2005. On demand made by the complainant, the accused had issued a cheque dated 08.07.2005, for a sum of Rs.1,00,000/-drawn on Canara Bank, R.S.Puram Branch, Coimbatore, to and in favour of the complainant. When the complainant presented the said cheque for encashment with his bankers on 08.07.2005, through his bankers, viz., Syndicate Bank, Pankaja Mill, Coimbatore, it was returned unpaid with an endorsement of "insufficient funds" in the account of the accused through return memo and the same was intimated to the complainant vide debit advice memo dated 09.07.2005. The complainant sent a lawyer's notice to the accused on 28.07.2005, which was received by accused on 01.08.2005. The accused sent a reply notice dated 01.08.2005 making false allegations. Hence, the complainant filed a complaint against the accused for an offence under Section 138 of Negotiable Instruments Act before the Judicial Magistrate-I, Coimbatore. 3. Subsequently, the case was taken on file of Judicial Magistrate-I, Coimbatore as C.C.No.105 of 2006. During the pendency of the case, the accused had filed a petition in C.M.P.No.9098 of 2007 and an affidavit in C.C.No.105 of 2006 under Section 45 of Evidence Act stating that the signature contained in the promissory note marked as Ex.P1 is not his signature. It was submitted that P.W.1 during his cross-examination had not raised any objections for getting an expert opinion regarding the signature in the promissory note as well as the age of the stamps affixed in the said promissory note. It was also prayed to send the cheque allegedly issued by him to a handwriting expert to ascertain the opinion regarding the signature found in the said cheque. It was submitted that the accused would bear the cost of the legal process involved in sending the cheque for getting expert opinion. It was also prayed to send the cheque allegedly issued by him to a handwriting expert to ascertain the opinion regarding the signature found in the said cheque. It was submitted that the accused would bear the cost of the legal process involved in sending the cheque for getting expert opinion. It was submitted that if the petition was not allowed, the accused would be put into hardship. Hence, it was prayed to send the exhibits marked as Exs.P1 and P2 viz., promissory note and cheque to a handwriting expert and get an opinion regarding signatures found in the said promissory note and cheque. It was submitted that the accused had never issued any promissory note or cheque to the respondent and had never received any amount as loan from the respondent and that the complainant had fraudulently prepared the said pronote. It was submitted that the accused had not issued the said cheque marked as Ex.P2 to the respondent and that it was issued to one Angamuthu. Due to enmity existing between the said Angamuthu and the accused and due to the filing of a case by the accused against the said Angamuthu in the District Consumers Court and due to the fact that a criminal case filed by the said Angamuthu against the accused is proceeding before the Criminal Court, the relative of Angamuthu, viz., Murugavel using the complainant as a benami, had fraudulently prepared a promissory note and filed a case through the complainant by using the cheque given as security in the year 2003. 4. The matter was taken for final hearing on 06.12.2007 by the Judicial Magsitrate-I, Coimbatore. The learned Magistrate after hearing the arguments on both sides and on perusing the documents observed that the case was pending examination of defence and that the petitioner / accused had not disputed his signature in the promissory note and that he has also not denied the signature in the cheque. The learned Magistrate, on opining that the signatures can be verified by the Court and on observing that when there is a presumption of liability, no necessity exists for sending the cheque for an expert opinion held that there is no merits in the petition and hence dismissed the petition. 5. Aggrieved by the dismissal of his petition, the petitioner / accused has preferred the present revision. 6. 5. Aggrieved by the dismissal of his petition, the petitioner / accused has preferred the present revision. 6. The learned counsel for the revision petitioner has contended that the learned Magistrate erred in holding that there is no requirement to find the age of the ink in the disputed documents / Exs.P1 and p2. It was contended that the learned Magistrate after having stated that the burden of proof lies on the petitioner to prove that the cheque was not signed by the petitioner and was not issued to the present complainant should have given an opportunity to the petitioner herein / accused to prove his case, but the learned Magistrate had erred in not giving an opportunity to the petitioner herein. It was also pointed out that the reasons stated by the learned Magistrate was also not in accordance with law. 7. The learned counsel for the complainant submitted that there is no irregularity or illegality in the impugned order passed by the learned Magistrate. Once, the accused had not denied the signature in the cheque, as such, the petition filed by the accused for expert opinion is not maintainable. The same was well considered by the learned Magistrate. Further, the main case is in a partly heard stage. It is an admitted fact that the accused had borrowed a sum of Rs.1,00,000/-after executing a pronote. In order to discharge the legally enforceable debt, the accused had issued cheque for the said amount in favour of the complainant. The said cheque was presented for collection and it was returned with an endorsement stating "insufficiency of funds". In order to prove the case under Section 138 of Negotiable Instruments Act, 13 documents have been filed before the learned Magistrate. The supplementary application filed by the accused seeking expert opinion is nothing but to drag and protract the proceedings of the case. The learned counsel further submitted that the main case is pending on the file of Judicial Magistrate for about six years. 8. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned order of the Learned Magistrate, this Court does not find any discrepancy in the said order. However, the main case is pending since the year 2006. Therefore, speedy disposal is required. 8. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned order of the Learned Magistrate, this Court does not find any discrepancy in the said order. However, the main case is pending since the year 2006. Therefore, speedy disposal is required. Hence, this Court directs the learned Judicial Magistrate-I, Coimbatore to dispose the main case on most urgent basis. 9. Resultantly, the above revision is dismissed. Consequently, the order passed in C.M.P.No.9098 of 2007 in C.C.No.105 of 2006, on the file of Judicial Magistrate-I, Coimbatore, dated 06.12.2007 is confirmed. Accordingly ordered.