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2012 DIGILAW 4606 (MAD)

S. Mathiazhagan v. M. Selvaraj

2012-11-06

M.Venugopal

body2012
ORDER 1. The petitioner/accused has focussed the present Criminal Revision Petition before this Court as against the order dated 16.5.2012 in Cr.M.P. No. 882 of 2012 in S.T.C. No. 882 of 2012, passed by the Learned Judicial Magistrate, Fast Track Court, Srivilliputtur. 2. The Learned Judicial Magistrate, Fast Track Court, Srivilliputtur, while dismissing the order in Cr.M.P. No. 882 of 2012 on 16.05.2012 in S.T.C. No. 4 of 2012, has among other things observed that “this case rested on Exhibit P-2, Cheque” and further, the petitioner has admitted the signature found in Exhibit P-2, Cheque as one belonging to him. But, he has repudiated that the signature found in Exhibit P-1, Pronte, does not belong to him etc. and resultantly, dismissed the petition, by stating that prior adequate opportunities given to him have not been utilised and subsequently, the evidence has been closed on the side of the respondent/complainant and when the matter stands for evidence being let in on the side of the petitioner/accused, at that point of time, the petitioner has projected the miscellaneous petition malafide with a view to drag on the case proceedings and dismissed the petition as not maintainable. 3. Being dissatisfied with the order of dismissal dated 16.5.2012 in Cr.M.P. No. 882 of 2012, passed by the learned Judicial Magistrate, Fast Track Court, the petitioner/accused, as an aggrieved person, has preferred the present Revision petition before this Court. 4. According to the Learned counsel for the petitioner/accused, the Trial Court ought to have allowed Cr.M.P. No. 882 of 2012 filed by the Revision petitioner, for obtaining opinion of Handwriting Expert. 5. It is the contention of the Learned counsel for the petitioner/accused that there is no acquaintance between the respondent/complainant and the petitioner/accused and the document given to one Jeya Thiruvaror Sambathi to the complainant has been misused under the complaint denies the signature attributed to him in Exhibit P-1, Pronote and therefore, to establish his defence, the petitioner/accused sought comparison of the signature found in Exhibit P-1, Pronote and in Exhibit P-2, Cheque. 6. The Learned counsel for the petitioner/accused strenuously submits that the petitioner/accused has denied his signature found in Exhibit P-1, Pronote dated 18.1.2010 and as a matter of fact, the petitioner/accused in law has a right of defence, which is statutory in nature. 7. 6. The Learned counsel for the petitioner/accused strenuously submits that the petitioner/accused has denied his signature found in Exhibit P-1, Pronote dated 18.1.2010 and as a matter of fact, the petitioner/accused in law has a right of defence, which is statutory in nature. 7. Advancing his arguments, the Learned counsel for the petitioner/accused contends that in the present case, the petitioner/accused has been disabled from rebutting the presumption raised under Section 139 of the Negotiable Instrument Act. 8. Finally, the Learned counsel for the petitioner/accused projects an argument that the petitioner/accused has been permitted to cross examine the respondent/complainant after the conclusion of examination under Section 313 of Cr.P.C and due foundation has been let therein and therefore, a request for referring the subject document for examination of Handwriting Expert cannot be denied in the eye of law. 9. Per contra, the Learned counsel for the respondent/Complainant submits that the petitioner/accused has submitted his signature in Exhibit P-2, Cheque dated 10.8.2011 and the petitioner/accused in Cr.M.P. No. 8982 of 2012, in para 1 before the Trial Court has averred that in Exhibit P-1, Pronote dated 18.1.2012, the signature found therein does not belong to him and that the Trial Court, in para 6 of its order in Cr.M.P. No. 882 of 2012, has clearly observed that the petitioner/accused has not denied the signature seen in Exhibit P-1, Pronote does not belong to him, when he has been questioned under Section 313 of Cr.P.C. proceedings and further, the Trial Court has also opined that the petitioner/accused, during his 313 of Cr.P.C. questioning, has clearly answered that he has nothing to state about the case in S.T.C. No. 4 of 2012 and consequently, dismissed the application, which need not be interfered with by this Court, at this distance point of time. 10. This Court has heard the respective Learned counsels appearing for the parties and noticed their contentions. 11. It is to be pointed out that the petitioner/accused has filed Cr.M.P. No. 882 of 2012 under Section 45 of the Indian Evidence Act, 1872, seeking permission of the Trial Court to obtain the opinion of expert by comparing signature found in Exhibit P-1, Pronote with that of signature seen in Exhibit P-2, Cheque dated 10.8.2011. He has taken a plea that in Exhibit P-1, Pronote dated 18.1.2010, the signature found therein does not belong to him. He has taken a plea that in Exhibit P-1, Pronote dated 18.1.2010, the signature found therein does not belong to him. However, the said plea is not accepted by the respondent/Complainant. 12. It cannot be gainsaid that there is no presumption about the execution of a Negotiable Instrument and if the execution of Pronote is denied by other side, it is for the party resting its claim of such instrument and to establish its execution. Added further, if the execution of Pronote is admitted, the presumption under Section 118(a) of the Negotiable Instrument Act, arises. However, the said presumption is a rebuttable one either by circumstantial evidence or by presumption of fact drawn as per Section 114 of the Indian Evidence Act. As a matter of fact, Section 139 of Negotiable Instrument Act provides for early presumption in favour of the complainant unless the contrary is proved. 13. At this juncture, it is to be borne in mind that the ingredients of Section 45 of Indian Evidence Act makes it crystal clear that opinion of the Handwriting Expert is a relevant fact and the same is admissible in evidence. It is true that a Judge is not supposed to possess the expert knowledge in such matters. The opinion tendered by an expert as per Section 45 of the Indian Evidence Act is to be treated as a relevant one. 14. The Court of law is to be circumspect and act with caution when particularly an expert witness is in Court. The expert may furnish his opinion on the facts of the case as proved by other witnesses at the trial. It is not the purview of an expert to take the role of a Judge or Jury. But, it is the paramount duty of a Court of law to see whether there is any reasonable and genuine case made out by a party seeking the aid of this Court for obtaining an opinion of an expert in order to compare the signature found in the documents in question. 15. As per Section 243 of Cr.P.C (a valuable right is given to the accused to examine defence witnesses), if the petitioner/accused desires to examine an expert and to obtain his opinion on the issue of any writing, then if necessary, he may examine the said expert in accordance with law. 15. As per Section 243 of Cr.P.C (a valuable right is given to the accused to examine defence witnesses), if the petitioner/accused desires to examine an expert and to obtain his opinion on the issue of any writing, then if necessary, he may examine the said expert in accordance with law. Indeed, the valuable right enshrined as per Section 243 of Cr.P.C is not purely within the domain of investigation and would admit or no restriction except where the Learned Judicial Magistrate is satisfied for reasons to be recorded in writing that the intended exercise is purely a vexatious one or with a view to delay the pending proceedings or to defeat the ends of justice. Furthermore, if the expert submits his report and tenders his evidence, the same will have to be considered by the Trial Court along with other available oral and documentary evidence on record at the time of disposal of the main case. To put it succinctly even in the absence of specific provision in Chapter XIX of Cr.P.C., the petitioner/accused can request the Court that document whose genuineness he disputed may be sent to the Expert for his opinion. This is implicit as per Section 243(2) of Cr.P.C. as opined by this Court. 16. Be that as it may, in the present case on hand, the main case in S.T.C. No. 4 of 2012 has reached a stage, where the evidence on the side of respondent/Complainant has been completed and the stage is now is said for the petitioner/accused to let in his side of oral and documentary evidence, (if he so desires/advised) only at that point of time, the petitioner/accused has chosen to project Cr.M.P. No. 882 of 2012, though belatedly. Moreover, at the time of 313 Cr.P.C. questioning, the petitioner/accused has stated before the Trial Court that he has nothing to state about the pending case. Further, on going through the order passed by the Trial Court in Cr.M.P. No. 882 of 2012 in S.T.C. No. 4 of 2012, this Court is of the considered view that the Trial Court has not committed any impropriety or illegality in dismissing the said criminal miscellaneous petition. 17. In short, the said order does not suffer from any material irregularity or patent illegality in the eye of law. Viewed in that perspective, the Criminal Revision Petition is devoid of merits and it fails. 18. 17. In short, the said order does not suffer from any material irregularity or patent illegality in the eye of law. Viewed in that perspective, the Criminal Revision Petition is devoid of merits and it fails. 18. In the result, the Criminal Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed. Petition dismissed.