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Gujarat High Court · body

2016 DIGILAW 2137 (GUJ)

Rakeshbhai Ambalal Patel v. State of Gujarat

2016-10-20

B.N.KARIA

body2016
JUDGMENT : 1. This application under Article 21 and 226 of the Constitution of India and under Section 482 of the Code of Criminal Procedure, 1973, has been preferred by the applicant, with prayer to quash and set aside the order passed in Criminal Revision Application No. 44 of 2011 dated 03.08.2012 passed by the learned District & Sessions Court, Sabarkantha at Himmatnagar and order dated 07.04.2011 passed below Exh.81 by the learned Judicial Magistrate First Class, Modasa in Criminal Case No. 1046 of 2007 Bayad, and to allow application Exh.81 filed by the applicant in Criminal Case No. 1046 of 2007 pending before the learned Judicial Magistrate First Class at Modasa. 2. The short facts leading to filing of the present application are as follows: 2.1 That, respondent No.2 herein have filed private complaint before the learned JMFC at Modasa being Criminal Case No. 1046 of 2007 for offences punishable under Section 138 of Negotiable Instrument (N.I) Act, against the present applicant. 2.2 The applicant submitted an application Exh.81 before the learned trial Court but the said application came to be rejected by an order dated 07.04.2011. 2.3 Being aggrieved by the order dated 07.04.2011, the applicant preferred Criminal Revision Application No. 44 of 2011 before the learned District and Sessions Court, Sabarkantha at Himmatnagar, which came to be rejected vide order dated 03.08.2012, which led to filing of present application. 3. Heard Mr. Manthan N. Patel, learned advocate for Mr. R.J. Goswami, learned advocate for the applicant, Mr. V.A. Mansuri, learned advocate for respondent No.2 and Mr. K.L. Pandya, learned Additional Public Prosecutor for respondent No.1 State. 4. It is submitted by Mr. Manthan Patel, learned advocate for Mr. R.J. Goswami, learned advocate for the applicant that, an application Exh.81 was submitted by the applicant-original accused in criminal complaint pending before the learned trial Court stating that no hand writing in the cheque was made by the applicant and as per the complaint, the cheque was written by the applicant in his presence. Therefore, to prove the said fact the applicant has submitted an application vide Exh.81 on 16.03.2011. Upon hearing the prosecution and defence, the learned trial judge was pleased to reject the application by an order dated 07.04.2011. Therefore, to prove the said fact the applicant has submitted an application vide Exh.81 on 16.03.2011. Upon hearing the prosecution and defence, the learned trial judge was pleased to reject the application by an order dated 07.04.2011. That, the order of the learned trial judge was challenged by the present applicant by way of filing a Criminal Revision Application before the learned District & Sessions Court, Sabarkantha at Himmatnagar being Criminal Revision Application No. 44 of 2011, and after, issuance of notice learned Sessions Court was pleased to reject the revision application by an order dated 03.08.2012. That, in dismissing the prayer of the applicant, learned trial Court as well as learned Sessions Court has committed grave mistake and the order is contrary to settled principles of criminal law. When the applicant has denied the said relevant fact and it was not admitted. That, an opportunity must be given to the applicant to get the opinion of handwriting expert, as he has denied the hand writing on the body of the cheque. In support of his contention, learned advocate for the applicant has relied upon the decisions of Hon’ble Supreme Court in the case of Kalyani Baskar (Mrs.) vs. M.S. Sampoornam (Mrs.) reported in (2007) 2 SCC 258 and requested this Court to quash and set aside the order passed by the learned trial judge below application Exh.81 in Criminal Case No. 1046 of 2007 as well as in Criminal Revision Application No. 44 of 2011 dated 03.08.2012. 5. On the other side, Mr. V.A. Mansuri, learned advocate for respondent No.2original complainant has vehemently opposed the submissions made by learned advocate for the applicant and argued that the complaint was filed against the applicant under Section 138 of the Negotiable Instruments Act on 29.11.2007. That, trial was already completed, an affidavit of the complainant was also placed on record and he was cross-examined by the applicant/accused before the trial Court. But after recording the evidence of the either side, trial was fixed for recording further statement of the accused/applicant on 05.03.2010. Other questions were asked by the learned trial Court and documentary evidence was to be produced by the accused. In response to the questions, the answer was given in affirmative manner by the accused/applicant. But no application was submitted by the applicant. Other questions were asked by the learned trial Court and documentary evidence was to be produced by the accused. In response to the questions, the answer was given in affirmative manner by the accused/applicant. But no application was submitted by the applicant. Thereafter, just to prolong the matter on 16.03.2011, the applicant has submitted for getting opinion of handwriting expert in respect of the cheque at Exh.12. Learned judge has rightly passed the order giving reasons in detail on 07.04.2011. Thereafter, this order was challenged before the learned District & Sessions Court at Sabarkantha camp at Modasa by preferring Criminal Revision Application No. 44 of 2011, which was also rejected by Court on 03.08.2012. 6. Learned APP Mr. K.L. Pandya, has supported the arguments of Mr. V.A. Mansuri, learned advocate for respondent No.2 and argued further that Section 73 of the Indian Evidence Act is very clear that the Court can compare the signature of a person during the trial, and therefore, no illegality is committed by the learned Court below in dismissing the application Exh.81 given by the present applicant. Hence, he also requests to dismiss the present application. 7. Having considered the facts of the case, submissions made by learned advocates, learned APP, documentary evidence produced on record, it appears that a complaint under Section 138 of the Negotiable Instruments Act was lodged by the present respondent No.2, before the learned Judicial Magistrate First Class at Modasa, which was numbered as Criminal Case no. 1046 of 2007. As per the contents, Rs.1,25,000/- was borrowed by the present applicant/accused from the complainant assuring that within two months he would return the amount to the complainant. Thereafter, on demanding the amount by the complainant one cheque amounting to Rs.1,25,000/- dated 30.08.2007 bearing no. 290144 of his account No. 2005337 was issued in favour of the complainant. On presenting the cheque in dispute, with the Bank authority it was returned back by an endorsement dated 01.10.2007 as “payment stopped by drawer”. The complainant was informed by the bank authority on 04.10.2007, and therefore, a legal notice was issued by the complainant through his advocate on 29.10.2007 by registered post and it was unserved to the accused as it was refused by the accused, and therefore, returned back with an endorsement of “unclaimed” on 03.11.2007. No reply was given by the accused of the notice issued. No reply was given by the accused of the notice issued. Hence, this complaint under Section 138 of the N.I Act was lodged by respondent No.2 on 29.11.2007. Statement of the complainant was recorded, and thereafter, summons was issued against the accused by the learned J.M.F.C of even date. It appears that, thereafter, the case was proceeded, deposition of the complainant was recorded by the learned trial judge. He was also cross-examined before the trial Court, certain documents were also produced and they were exhibited vide Exh Nos. 12 to 19 by an order dated 05.11.2008. Branch Manager Shri Himanshubhai Hasmukhbhai Ramani was examined as a witness. Further statement of the accused under Section 313 Cr.P.C was also recorded on 05.03.2010, in which one question was asked by the learned trial judge, as to whether the accused wanted to produce any documentary evidence. In response to this question, affirmative answer was given by the accused. Vide exh. 39 affidavit in chief-examination was submitted by the accused before the trial Court on 11.05.2010 and he was also cross-examined on the very same date. Witness from the accused, namely, Bhikhabhai Somabhai Patel (Exh. 64) was examined on 25.05.2010. His cross-examination was also carried out. Thereafter, on 16.03.2011, one application was submitted by the accused for getting opinion of hand writing expert in respect of hand writing filled up in the body of the cheque at Exh.12. Learned trial judge after hearing both the sides was pleased to reject the application vide order dated 07.04.2011. The order passed by the learned trial judge was challenged in a Revision Application preferred by the accused being Criminal Revision Application No. 44 of 2011 before the learned District and Sessions Judge Himatnagar at Sabarkantha. Learned judge after hearing both the parties was of the view that there was no illegality or perversity in rejecting the application Exh. 81 by the learned trial judge and by an order dated 03.08.2012 this Revision Application was dismissed. It appears from the record that, however, the complaint was lodged on 29.11.2007 and after examining the witnesses from the prosecution side as well as from the defence, trial was almost over and was fixed for hearing the arguments of the respective parties. 81 by the learned trial judge and by an order dated 03.08.2012 this Revision Application was dismissed. It appears from the record that, however, the complaint was lodged on 29.11.2007 and after examining the witnesses from the prosecution side as well as from the defence, trial was almost over and was fixed for hearing the arguments of the respective parties. Further statement of the accused under Section 313 of the Cr.P.C was also recorded and he was given an opportunity by the learned trial judge by asking a question, as to whether he wanted to produce any documentary evidence and in response to the said question asked to the accused, he had replied that certain documentary evidence would be produced by him. But, no documentary evidence were produced by the accused and instead of it an application vide Exh. 81 was submitted by him requesting the Court to get the opinion of hand writing expert filled up in the cheque at Exh.12. Right of the accused in getting opinion of the hand writing expert, when he denies his hand writing in the cheque is a valuable right and in a normal case it cannot be denied by the Court, except the Court finds it fit and opine that just to delay the proceedings the accused is trying hard. Also, it appears that after passing of five years approximately from the filing of the complaint, the accused has tried by submitting an application to get the opinion of hand writing expert filled up in the body of cheque at Exh.12. He had an ample opportunity to submit such an application at the initial stage during the course of the trial, but, after completing the evidence from both the sides and further statement of the accused under Section 313 Cr.P.C, he was silent and did not submit any application. Learned advocate for the applicant on this issue has relied on 2007 (2) SCC 258 . Hon’ble Supreme Court in the stated case has held as under: “12. Learned advocate for the applicant on this issue has relied on 2007 (2) SCC 258 . Hon’ble Supreme Court in the stated case has held as under: “12. Section 243(2) is clear that a Magistrate holding an inquiry under Cr.P.C in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. “Fair trial” includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them. We have not been able to appreciate the view of the learned judge of the High Court that the petitioner has filed application under Section 243 CrPC without naming any person as witness or anything to be summoned, which are to be sent for handwriting expert for examination. As noticed above, Section 243(2) CrPC refers to a stage when the prosecution closes its evidence after examining the witnesses and the accused has entered upon his defence. As noticed above, Section 243(2) CrPC refers to a stage when the prosecution closes its evidence after examining the witnesses and the accused has entered upon his defence. The appellant in this case requests for sending the cheque in question, for the opinion of the handwriting 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.” 8. Hon’ble Supreme Court has also held that in such a case magistrate should grant such request, unless he thinks that the object of the appellant is vexation or to delay the criminal proceedings. Here also both the Courts below have opined while passing their orders that the applicant has submitted application vide Exh.81 after a long delay, and therefore, the order passed by the learned judge of the trial Court cannot be said to be perverse or illegal, and therefore, there is no substance in the present application and it requires dismissal. Looking to the facts of the case that trial is pending before the trial Court since 2007 is almost over and the witnesses are examined from either side, therefore, requires speedy disposal as requested by Mr. V.A. Mansuri, learned advocate for respondent No.2. Hence, the learned trial judge is hereby directed to dispose of Criminal Case No. 1046 of 2007 within two months from receipt of this order of this Court in accordance with law. The present application is dismissed, accordingly. Rule is discharged.