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2015 DIGILAW 228 (MAD)

R. M. Regitha v. Ligori Valan

2015-01-19

M.SATHYANARAYANAN

body2015
Judgment :- 1. By consent the revision itself is taken up for final disposal. 2. The accused in C.C.No.215 of 2013 pending on the file of the Court of Judicial Magistrate, Fast Trac No.I, at Nagercoil, Kanyakumari District, is the petitioner herein and he is arrayed as an accused in the said Calendar Case, which is filed under Section 138 of Negotiable Instruments Act. 3. According to the respondent / complainant, both are known to each other and the revision petitioner / accused has borrowed a sum of Rs.5,00,000/- to meet out her urgent family expenses and to discharge the said sum, issued a post dated Cheque, bearing No.02012077, dated 15.03.2013 for a sum of Rs.5,00,000/-, drawn on Union Bank of India, Marthandam Branch. The accused also made a promise to honour the said cheque upon its presentation for collection. 4. The respondent / complainant believing the said representation presented the cheque for encashment through his Bank, viz., Federal Bank, Nagercoil Branch, on 16.03.2013 and the said cheque was returned with an endorsement 'Funds Insufficient’. The complainant, on receipt of the written memorandum has issued statutory notice on 22.03.2013. Though the accused has acknowledged the receipt of the notice on 25.03.2013, he failed to honour the cheque and hence, came forward to file the said private complaint. 5. The complainant was examined as P.W.1 and in the course of cross-examination, a specific question was put to him that the signature found in the Ex.P1 Cheque is not that of the revision petitioner / accused. On behalf of the complainant, the Assistant Manager of Union Bank of India, Marthandam Branch was also examined and a specific question was put to him as the signatures found in Ex.D1 Account Opening Form as well as the signature found in Ex.P1 Cheque and it is the testimony of P.W.2 that the signatures found in the said documents are that of the revision petitioner / accused. 6. The accused filed C.M.P.No.5285 of 2014 under Section 45 of the Indian Evidence Act to compare the signature found in Ex.P1, Cheque with Ex.D1 Account Opening Form, to the Forensic Analysis, by sending the same to the Assistant Director, Regional Forensic Science Lab, Madurai. 7. The said petition was opposed by the respondent herein / complainant by filing counter. 6. The accused filed C.M.P.No.5285 of 2014 under Section 45 of the Indian Evidence Act to compare the signature found in Ex.P1, Cheque with Ex.D1 Account Opening Form, to the Forensic Analysis, by sending the same to the Assistant Director, Regional Forensic Science Lab, Madurai. 7. The said petition was opposed by the respondent herein / complainant by filing counter. The Court of Judicial Magistrate No.1, Nagercoil, vide order dated 10.09.2014 had dismissed the said petition, on the ground that according to the testimony of P.W.2, the signature found the Ex.P1, Cheque as well as Ex.D1 Account Opening Form are that of the accused. The said Court has had also compared the signatures found the Ex.P1, Cheque and Ex.D1, Account Opening Form and found that both the signatures are tailed with each other. The revision petitioner / accused, aggrieved by the dismissal of the said petition, has filed the present revision. 8. The learned counsel appearing for the revision petitioner has drawn the attention of this Court to the cross examination of P.W.1 / complainant as well as P.W.2 / Bank Manager and would submit that since the defence that the signature found in Ex.P1 Cheque is not that of the accused and it has been taken at the earliest point of time, the trial Court ought to have ordered the petition filed under Section 45 of the Indian Evidence Act, and citing untenable reasons, had dismissed the same and therefore, prayed for interference. 9. Per contra, the learned counsel appearing for the respondent would submit that though cross-examination on behalf of the complainant was over on 24.03.2014 itself, the present petition was filed only on 05.08.2014 and the revision petitioner / accused has failed to explain the delay in filing the petition. It is the further submission of the learned counsel appearing for the respondent / complainant that it is always open to the trial Court to exercise the powers under Section 73 of Indian Evidence Act, 1872 and precisely it was done by the trial Court and itself has compared the signatures and found that the signature found in Ex.P1 Cheque is that of the revision petitioner / accused. In sum and substance, it is the submission of the learned counsel appearing for the respondent / complainant that, since the trial Court, on due application of mind to the facts and circumstances of the case, has rightly dismissed the application and the interference may not be warranted at the hands of this Court in exercise of the revisional jurisdiction. 10. This Court has carefully considered the rival submission and also perused the materials available on record. 11. The Hon'ble Supreme Court of India in the Judgment in Kalyani Baskar Vs. M.S. Sampoornam reported in (2007 (2) CTC 364) has considered the necessity of sending the disputed signatures for expert opinion and it is relevant to extract paragraphs 10 and 12, which read as follows:- “10. It is not in dispute that the appellant at the initial stage of her appearance before the Magistrate had filed an application under Section 245 Cr.P.C. in which she had categorically denied her signature on the cheque and its delivery to the respondent besides raising other preliminary objections in opposition to the complaint filed by the respondent under Section 138 of the Act. From the record, it appears that the said application was dismissed by the Magistrate on the ground that the genuineness of the signature can be questioned only at the time of trial. The appellant accepted the correctness of the said order of the Magistrate. During the trial, the respondent was examined as P.W. 1 on 22.09.1999 and PW-3, the officer of the Bank, was examined on 22.11.2000. It is thereafter that the appellant had filed the application under Section 243 Cr.P.C. praying to send the cheque, in question, for ascertaining the bona fide and genuineness of her signature appended thereon. The Trial Magistrate as well as the High Court have observed that Section 243 Cr.P.C. deals with summoning of defence witnesses and cause any document or thing to be produced through him. But in the present case, the accused has filed a petition without naming any person as witness or anything to be summoned which is to be sent for hand-writing expert for examination. 12. But in the present case, the accused has filed a petition without naming any person as witness or anything to be summoned which is to be sent for hand-writing expert for examination. 12. .......the appellant in this case requests for sending the cheque, in question, for the opinion of the hand-writing expert after the respondent has closed her evidence, the Magistrate should have granted such a request unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. In the circumstances, the order of the High Court impugned in this Appeal upholding the order of the Magistrate is erroneous and not sustainable.” 12. The said judgment was referred to in the subsequent judgment of the Hon'ble Supreme Court in T.Nagappa Vs. Y.R.Muralidhar reported in ( 2008 (5) SCC 633 ), wherein the Hon'ble Supreme Court of India held that in such circumstances, it is better to send the signature found in the disputed cheque for expert opinion. 13. A perusal of the materials available on record would disclose that the revision petitioner / accused has taken such a stand at the earliest point of time while cross-examination of P.Ws.1 to 4 the Bank officials. No doubt, it is open to the trial Court to exercise the power under Section 73 of Indian Evidence Act, 1872, to compare the signature found in the disputed cheque as well as the admitted documents but, the facts remains that it is always better to send the disputed signatures for expert opinion, as it will help the trial court to resolve the issue involved. 14. In the result, the revision petition is allowed and the impugned order dated 10.09.2013 made in Crl.M.P.No.5285 of 2014 in C.C.No.215 of 2013 on the file of the Judicial Magistrate, Fast Track No.1, Nagercoil and set aside. Consequently, connected miscellaneous petition is closed. Remuneration 15. Mr. 14. In the result, the revision petition is allowed and the impugned order dated 10.09.2013 made in Crl.M.P.No.5285 of 2014 in C.C.No.215 of 2013 on the file of the Judicial Magistrate, Fast Track No.1, Nagercoil and set aside. Consequently, connected miscellaneous petition is closed. Remuneration 15. Mr. T.S.Rajesh, Advocate, Mobile No.9443705107, No.19, Law Chamber, District Court Campus, Nagercoil, 629 001, having residence address 693, 2nd Cross Street, Nesamony Nagar, Nagercoil - 629 001.Phone No: 04652-224107, is appointed as Advocate Commissioner to take Ex.P1 Cheque from the custody of the Court of Judicial Magistrate, Fast Track No.I, at Nagercoil , Kanyakumari District to handover the same to the Assistant Director, Regional Forensic Science Lab, Madurai for expert opinion and after obtaining the Cheque-Ex.P1, from the Assistant Director, is directed to hand over the same to the said Court. 16. The trial Court as well as the Regional Forensic Lab are directed to expedite the process in this regard. 17. A sum of Rs.10,000/- is fixed as initial remuneration and it shall be payable to Advocate Commissioner, by the revision petitioner / accused.