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2014 DIGILAW 450 (KAR)

N. Muniswamy Reddy v. M. Narayanaswamy

2014-04-05

S.N.SATYANARAYANA

body2014
ORDER : S.N. Satyanarayana, J. 1. The accused in C.C. No. 73/2009 pending on the file of JMFC, Srinivaspura, has come up in this criminal petition seeking to set aside the order dated 15.10.2013 passed in Crl. R.P. No. 82/2012 on the file of I Additional Sessions Court, wherein the revision petition is dismissed confirming the order dated 6.10.2012 passed in C.C. No. 73/2009. 2. Admittedly, the aforesaid orders are on an application filed by the accused under Sections 45 and 73 of the Indian Evidence Act (the Act' for short), seeking to refer the cheque dated 15.10.2008 (vide Ex. P1) produced by the complainant to the forensic laboratory for an opinion of the expert. When said application came to be filed, it was dismissed on the ground that there is admission on the part of petitioner herein, who is accused before the learned Magistrate in having put the signature on the said cheque. That since dispute is only with reference to the contents of the cheque not being written by the accused and according to him, the same is filled up by the complainant in handwriting other than that of the accused, therefore, the document is required to be referred for forensic investigation to verify the age of the signature as well as other contents of the disputed document/cheque by referring the document to forensic laboratory, does not arise. The learned Magistrate also felt that no grounds are made out to refer the cheque for chemical analysis and accordingly, rejected the application. 3. Being aggrieved by the same, the accused-petitioner herein preferred a revision under Section 397 of Cr.P.C. in Crl. R.P. No. 82/2012 on the file of I Additional Sessions Judge, Kolar, wherein the learned Sessions Judge, after hearing the revision petitioner felt that in the light of Section 397(2) of Cr.P.C., the order sought to be revised cannot be entertained by the Court of Sessions on the ground that it is only an interlocutory order and therefore, the said revision petition is not maintainable and accordingly dismissed the revision petition. Being aggrieved by the finding of both the courts below, this criminal petition is filed by the accused seeking to set aside the order passed by the Sessions Court in dismissing the revision petition and also seeking to set aside the order passed by the JMFC, Srinivasapura in rejecting his application filed under Section 45 and 73 of the Act. 4. Heard the learned Counsel for the petitioner. Perused the orders impugned and also the copy of application, which is filed by the petitioner before the learned Magistrate. On going through the same, it is seen that in the said application the petitioner herein has taken a specific defence that the cheque, which is available with the complainant no doubt belongs to him and the signature that it carries also is that of himself. According to him, it was never given to the complainant on 10.8.2008 as contended and it was not with reference to repayment of alleged loan. In the defence it is specifically stated that there was a chit transaction between the complainant and accused even prior to 2005 and in that context, while receiving the amount that was paid in the chit as and by way of security, the cheque in question was handed over to the complainant in the year 2005. While doing so, since it was for the sake of security, except putting the signature on the cheque, the rest of the columns of the cheque were left blank, which according to the petitioner/accused is utilized by the complainant by filling up the cheque by himself and presenting the same for realization of non existing debt. Therefore, the said cheque cannot be accepted on its face value and the same is required to be referred to forensic laboratory. 5. In the application, which was filed by petitioner under Section 45 and 73 of the Act, it was sought that the said cheque should be referred to forensic expert to ascertain the age of the ink of signature of petitioner on the disputed cheque. Also the age of the ink used for writing the contents of the cheque, to establish that the signature and other contents of the cheques are of two different time zone and not that of the same age as it is contended by the complainant. Also the age of the ink used for writing the contents of the cheque, to establish that the signature and other contents of the cheques are of two different time zone and not that of the same age as it is contended by the complainant. In fact, the said defence if it is established by the petitioner to the satisfaction of the learned Magistrate, it would go to the very root of the claim and if the petitioner can succeed in establishing that the age of the ink in which the signature is found and the age of the ink in which the contents of the cheque other than signature are of different time zone, then on that basis itself the case of the complainant could be rejected. Therefore, though the said order appears to be interlocutory in nature, the outcome of the said order would go to the very root of the case in the parties establishing their right as well as defence. Therefore, it could not have been lightly considered as an order on interlocutory application as explained in Section 397(2) of Cr.P.C. 6. In support of his contention, the learned Counsel for petitioner would rely on the judgment rendered by the Apex Court in the matter of Amar Nath & Ors., vs. State of Haryana & Anr., reported in (1977) 4 SCC 137 , wherein their lordships, while deciding the powers of High Court as well as Sessions Court while discussing the revision powers of the High Court as well as Sessions court under Section397, have dealt at length what would amount to an interlocutory order and would be an order though on an interlocutory application to be considered as an order, which is revisable. While doing so, the Apex Court has referred to several earlier judgments rendered on the point as well as the legal position as it stood earlier to the amendment in 1973 i.e., with reference to the old Code of 1898 and 1955 amendment vis-à-vis the present position as in the amended Act of 1973 with reference to Section 397. While doing so, they have discussed at length what would amount to interlocutory order and what should be viewed as an order, which would have the matters of moment in a particular case on which the case would be decided and not merely an order in aid of the proceeding. While doing so, they have discussed at length what would amount to interlocutory order and what should be viewed as an order, which would have the matters of moment in a particular case on which the case would be decided and not merely an order in aid of the proceeding. If that is taken in to consideration and from that angle if the order under challenge in this proceeding is looked in to, the order that would be passed on an application under Section45 and 73 of the Act would go to the very root of the case in establishing the defence of petitioner/accused with reference to the right of complainant to seek the relief based on the disputed document. 7. In that view of the matter, though the application by nomenclature is classified as an interlocutory application, the finding which would be given on the said application would have a direct bearing on the claim of the complainant in the proceeding, which is pending consideration before the learned Magistrate. Hence, this Court find that the learned Sessions Judge has fallen in error in appreciating the order impugned in Cr. R.P. 82/2012 while rejecting the application under Sections 45 and 73 of the Act. After having observed thus, though the order passed by the learned Sessions Judge could be set aside and the matter could be remanded back for fresh consideration, the same would not inure to the benefit of the parties which would result in multiplicity of the proceedings. 8. However, in the light of the fact that this petition is under Section 482 of Cr.P.C., and this Court having wide power to consider the correctness or otherwise of the order passed by the learned Magistrate in C.C. No. 73/2009 dehorse the proceeding in Crl. R.P. 82/2012, if the order of the learned magistrate is appreciated on its own merits, it is seen that a serious error is committed by the learned Magistrate. When the entire defence of accused in the said proceeding is with reference to the misuse of document/cheque, which was given as security by the accused to the complainant and the complainant thereafter filling up the contents of the cheque and using the same against accused for non existing debt. When the entire defence of accused in the said proceeding is with reference to the misuse of document/cheque, which was given as security by the accused to the complainant and the complainant thereafter filling up the contents of the cheque and using the same against accused for non existing debt. The said defence can be ascertained only in getting the handwriting on the said document being subjected to chemical analysis to know the age of the ink used for the signature as well as for filling the other contents of the said cheque, if the petitioner is agreeable to get the said test conducted at his cost, nothing prevented the learned Magistrate in allowing the said application, wherein the finding would result in the matter reaching finality on its merits. 9. With the aforesaid observations, criminal petition filed by the accused in C.C. No. 73/2009 is allowed by setting aside the order dated 15.10.2013 passed by the Sessions Court in Crl. R.P. No. 82/2012 and also the order dated 6.10.2012 passed by the learned JMFC, Srinivasapura in C.C. No. 73/2009. Consequently, the application which is filed by the petitioner herein under Section 45 and 73 of the Indian Evidence Act seeking to refer the document at Ex. P1 i.e., cheque dated 15.10.2008 to forensic laboratory for chemical analysis at the cost of the petitioner herein, is hereby allowed.