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2017 DIGILAW 1462 (GAU)

Dip Bora v. State of Assam

2017-11-21

MIR ALFAZ ALI

body2017
JUDGMENT : Mir Alfaz Ali, J. 1. Heard Mr. M. Dutta, learned counsel for the revision petitioner and Mr. R. Phukan, learned counsel for the respondent No. 2. Also heard Mr. B.B. Gogoi, learned Addl. P.P., Assam for the State. Aggrieved by order dated 19.08.2016 passed by the learned Judicial Magistrate, Golaghatin CR(NI Act) Case No. 27/2013, the petitioner has preferred the instant revision petition. By the said order, learned Magistrate rejected the prayer of the petitioner for getting the cheque in question examined by handwriting expert. 2. The respondent herein as complainant filed a complaint against the petitioner under Section 138 N.L. Act, alleging dishonor of a cheque for an amount of Rs. 1,22,000/-. The respondent/complainant has adduced evidence. The accused/revision petitioner, upon entering into his defence filed an application praying for sending the cheque in question to Forensic Science Laboratory (FSL) in order to get the cheque examined by handwriting expert. 3. The specific allegation of the accused/revision petitioner was that he issued the cheque for an amount of Rs. 22,000/-, wherein the amount was recorded only in figure. He also wrote his account number in the cheque as 17445 and put his signature. Subsequently, the cheque was allegedly manipulated and forged by putting the figure 1' (one) before 22,000/- and thereby the amount of the cheque was raised to Rs. 1,22,000/-. It has also been stated by the petitioner, that except the amount of Rs. 22,000/- in figure, the account number and signature, nothing was written in the cheque by the revision petitioner. Thus alleging misuse and commission of forgery in respect of the cheque, the petitioner sought the cheque to be examined by handwriting expert. 4. Earned Trial Court by the impugned order rejected the petition on the ground that it will cause delay in disposal of the case and fixed next date for comparing the signature of the accused by the court itself. 5. Learned counsel for the petitioner, relying on the decision of the Apex Court in T. Nagappa Vs. Y.R. Muralidhar reported in (2008) 5 SCC 633 and Kalyani Baskar Vs. M.S. Sampoomam reported in (2007) 2 SCC 258 submits that the defence of the accused petitioner being manipulation and misuse of the cheque in question, the impugned order refusing to send the cheque for examination by the expert, has deprived the petitioner of his right to defend his case. 6. M.S. Sampoomam reported in (2007) 2 SCC 258 submits that the defence of the accused petitioner being manipulation and misuse of the cheque in question, the impugned order refusing to send the cheque for examination by the expert, has deprived the petitioner of his right to defend his case. 6. Learned counsel for the respondent referring to Section 20 and 118 of the NI Act contended that Section 20 of the NI Act has given authority to the holder of the cheque to complete an incomplete negotiable instrument and therefore, it is not open to the drawer of the cheque to object, when he holder of the negotiable instrument completes an incomplete negotiable instrument. It is also submitted that Section 118 raises presumption as to the genuineness of the cheque. As there was no dispute with regard to issuance of the cheque, the petitioner had filed the petition only to cause delay. To resist the prayer of the petitioner for sending the cheque for examination by handwriting expert, learned counsel for the respondent also placed reliance on the decisions of the Apex Court in Dayamathi Bai Vs. K.M. Shaffi reported in (2004) 7 SCC 107 , T. Nagappa Vs. Muralidhar reported in (2008) 5 SCC 633 and Union of India Vs. V. Jyoti Prakash Mitter reported in AIR 1971 SC 1093 . 7. I have considered the submissions of both the sides. 8. Section 243(2) Cr.P.C., which reads as under: "Section 243(1).................. (2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such, process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing: Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice." 9. Sub-section (1) of the Section 243 Cr.P.C. clearly provides that the right of the accused to adduce evidence in support of his defence has to be exercise only after the prosecution evidence is over. Sub-section (2) provides, that if after entering into his defence, the accused applies before the court for its assistance for compelling attendance of any witness or for production of any document or other thing, Magistrate has to render such assistance. The assistance sought by the accused, can be denied only when the Magistrate is satisfied that such assistance is not necessary for ends of justice or that such is assistance sought by the accused for purposes of vexations, delay or for defending the ends of justice 10. One must bear in mind that adducing evidence in support of defence is a valuable right and denial of such right amounts to denial of fair trial. Fair trial obviously includes providing fair and reasonable opportunity to the accused to prove his innocence. Therefore, when the question is of right of the accused for fair trial, there cannot be any discretion to refuse the assistance sought by the accused to defend him except on the grounds provided by the statute. Section 243(2) clearly provides that the prayer of the accused seeking any assistance from the court under Sub-section (2) cannot be refused, unless the Magistrate is satisfied that the prayer of the accused is vexatious or for causing delay or for defeating the ends of justice. 11. In the case in hand, when the evidence of the complainant was completed and the accused entered into his defence under Section 243(1) Cr.P.C., he filed the petition praying for sending the cheque in question for examination by handwriting expert. The reason for sending the cheque for expert examination was that the complainant misused the cheque, by manipulating the amount of the cheque. Since the defence of the accused was based on forgery and manipulation of the cheque, the accused certainly has the right to ask for examination of the cheque to substantiate his defence. When the accused prayed for sending the cheque to prove his innocence or to establish his defence and the prayer was made in the appropriate stage as provided under Section 243 Cr.P.C., it cannot be said that the petition was filed at belated stage or to cause delay. 12. The Apex Court in T. Nagappa Vs. When the accused prayed for sending the cheque to prove his innocence or to establish his defence and the prayer was made in the appropriate stage as provided under Section 243 Cr.P.C., it cannot be said that the petition was filed at belated stage or to cause delay. 12. The Apex Court in T. Nagappa Vs. Murulidhar (supra) relied by the learned counsel for the petitioner, while dealing with the similar issue held, that "the issue now almost stands concluded by a decision of this Court in Kalyani Baskar (supra) (in which one of us, L.S. Panta, J., was a member) wherein it was held: "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 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 far 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." 13. 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." 13. The decision of the Apex Court in Dayamathi (supra), relied by the learned counsel for the respondent appears to be misplaced in the context of the controversy in the present case, inasmuch as, the Apex Court in Dayamathi (supra) was dealing with the question as to whether objection with regard to admissibility of the certified copy being secondary evidence can be raised at a later stage while such objection is not raised at the time of tendering documents in evidence. The decision of the Apex Court in Union of India Vs. Jyoti Prakash Mitter (supra) also does not appear to be of any help to the respondent as the facts and issues dealt by the Apex Court was totally different. 14. Section 20 of the NI Act does not provide any absolute right to the holder of the cheque. It only grants a prima facie authority inter alia to complete an incomplete negotiable instrument subject to the condition and rider provided therein. No doubt, Section 118 of the N.I. Act case, as referred by the learned counsel for the respondent, raises presumption in favour of the holder of the cheque, but such presumption is always subject to rebuttal. When a serious allegation of manipulation or forgery of the cheque is raised, the accused cannot be denied the opportunity of rebutting such presumption by adducing evidence of his choice. 15. So far para-9 of the judgment in Nagappa Vs. Murulidhar (supra) relied by the learned counsel for the respondent is concerned, there is no controversy with regard to the ratio laid down therein, that the accused should not be allowed to unnecessarily protract the trial by filing vexatious petition or seeking assistance of the court which would not be at all relevant. The provision of Sub-Section (2) of Section 243 itself provides that assistance sought by the accused may be refused when the court is satisfied that the application for such assistance is made only to cause delay or for vexation or to defeat the cause of justice. The provision of Sub-Section (2) of Section 243 itself provides that assistance sought by the accused may be refused when the court is satisfied that the application for such assistance is made only to cause delay or for vexation or to defeat the cause of justice. Whether the petition filed by the parties is vexatious or with the motive of causing delay has to be considered on the facts and circumstances of each case. In the instant case, as noticed hereinabove, the petition was filed by the accused at the appropriate stage and the reason for sending the cheque for examination by expert also cannot be held to be flimsy one. Therefore, the prayer of the petitioner in the facts and circumstances, cannot be said to be vexatious or with the motive of causing delay. 16. It appears from the impugned order that the learned Trial Court out of the anxiety of avoiding delay rejected the prayer of the petitioner and undertook to compare the signature in the cheque by itself. No doubt, Section 73 of the Evidence Act provides, that the Court can compare any signature or writing, with the admitted or proved signature or writing of the person concerned for its satisfaction. But when the question involved in the issue, requires something more and serious allegation of manipulation or forgery of the document was brought, in my humble view, it was not wise for the court to assume the role of an expert, because of the simple reason, that court can only compare, but court cannot discharge the function of an expert, more particularly, when the issue is not merely comparing the signature or handwriting rather, detection of forgery, requiring scientific examination. No doubt, the anxiety of the learned Trial Court to cut short the delay may be commendable, but at the same time, court cannot lose its sight of the basic tenets of the fair trial. If the accused, in a criminal proceeding are not given the opportunity to adduce evidence in support of his defence, only for the sake of expeditious trial, that would amount to denial of fair trial, affecting the right of the accused granted by the constitution to defend his case properly. If the accused, in a criminal proceeding are not given the opportunity to adduce evidence in support of his defence, only for the sake of expeditious trial, that would amount to denial of fair trial, affecting the right of the accused granted by the constitution to defend his case properly. When the petition was filed at an appropriate time, as contemplated under Section 243(2) Cr.P.C. raising a serious allegation of misuse of the cheque by manipulation, learned Trial Court ought to have allowed the petition and ought not to have assumed the role of an expert to examine the disputed handwriting by itself. 17. In view of what has been discussed hereinbefore, the impugned order is not sustainable and deserves to be set aside. Accordingly, the impugned order is set aside. 18. In order to avoid unnecessary delay, it is made clear that the parties shall appear before the learned Trial Court on or before 22.12.2017 and on the same date, the petitioner shall take all necessary steps including depositing the cost of the expert as well as the queries sought to be answered by expert. In case of failure on the part of the petitioner, the Trial Court shall proceed with the matter. It is further held that opinion of the expert on the following question will be sufficient. (I) Whether the figure 1' before the figure 22,000/- in the cheque (within the box and the figure 22,000/- suffixing the figure 1' are written by same person and at the same time. (II) Whether the person, who signed the cheque as Dip Bora has also written all other contents of the cheque which are in letters. With the above observation and direction, the Criminal Revision Petition is allowed and stands disposed of.