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2017 DIGILAW 155 (ORI)

Bikram Kumar Jena v. Deepak Kumar Mohapatra

2017-02-09

S.K.SAHOO

body2017
JUDGMENT : This is an application under section 391 of the Cr.P.C. filed by the petitioner Bikram Kumar Jena for passing necessary orders to send the disputed cheque (Ext.2) to the handwriting expert. In the prayer portion, nothing has been indicated as to on what aspect the handwriting expert would examine the cheque in question. However, in paragraph-5 of the misc. case, it is mentioned that the amount mentioned in the cheque, the date mentioned therein and the person to whom it has been issued have been manipulated by the complainant-opposite party and the same is in a complete different ink. Admittedly, no such prayer was made by the petitioner either before the learned Trial Court or before the learned Appellate Court to send the disputed cheque to the handwriting expert. 2. Learned counsel for the petitioner Mr. D.P. Dhal contended that to arrive at a just and fair conclusion in the case, the disputed cheque should be sent to the handwriting expert so that the plea of the defence that the cheque has been manipulated could be confirmed. 3. Learned counsel for the opposite party Mr. Maheswar Dash on the other hand filed objection to such application wherein it is mentioned that the attempt of the petitioner in filing such Misc. Case is nothing but to patch up the lacuna and when the accused has not examined himself during trial in support of his defence plea even though he is a competent witness in view of section 315 of Cr.P.C. and he has not raised any such specific plea before the learned Trial Court and therefore, it would not be proper for this Court to entertain such a petition at this stage which has been made to defeat the ends of justice. 4. The petitioner has been convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo S.I. for a period of six months and pay a compensation of Rs.15,00,000/- (rupees fifteen lakhs only) to the complainant-opposite party by the learned S.D.J.M., Bhubaneswar in I.C.C. Case No.2134 of 2007 vide impugned judgment and order dated 21.01.2009 which was confirmed in appeal by the learned Sessions Judge, Khurda at Bhubaneswar vide impugned judgment and order dated 13.10.2010 in Criminal Appeal No.08 of 2009. 5. 5. There is no dispute that the High Court while exercising power of revision can also exercise the power of the Appellate Court under section 391 of Cr.P.C. in its discretion in taking further evidence which would be clear from the provision under section 401(1) of Cr.P.C. 6. The learned counsel for the petitioner placed the decision of the Hon’ble Supreme Court in case of Kalyani Baskar (Mrs.) Vs. M.S. Sampoornam (Mrs.) reported in (2007) 2 SCC 258 wherein it was held that the “fair trial” includes fair and proper opportunities allowed by law to prove the innocence of an accused. Adducing evidence in support of the defence is a valuable right and denial of that right means denial of fair trial. It is essential that the 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. In that case when the accused appeared before the Trial Court in the complaint case, he filed an application under section 243 of Cr.P.C. raising, inter alia, preliminary objections with a prayer that the signature on the cheque may be sent for expert opinion to ascertain bonafides of the same. The learned Magistrate dismissed such application. The matter was challenged before the High Court which also confirmed the order of the Magistrate, against which the matter came before the Hon’ble Supreme Court. Considering the provisions under section 243(2) of Cr.P.C., the Magistrate was directed to take appropriate step for obtaining the opinion of handwriting expert on the point whether the signature on the cheque was that of the accused and to proceed with the trial of the case. 7. The learned counsel for the petitioner further placed the decision of the Hon’ble Supreme Court in case of Mohd. Hussain @ Julfikar Ali Vs. State (Govt. of NCT), Delhi reported in AIR 2012 SC 3860 wherein it is held that ‘speedy trial’ and ‘fair trial’ to a person accused of a crime are integral part of Article 21 and there is qualitative difference between the right to speedy trial and the accused’s right to fair trial. Unlike the accused’s right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. 8. The learned counsel further placed reliance in case of Safura Khatun Bibi Vs. Unlike the accused’s right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. 8. The learned counsel further placed reliance in case of Safura Khatun Bibi Vs. Damodar Sabat reported in (2011) 49 OCrR 507 wherein while the matter was pending for trial, a prayer was made by the accused for sending the disputed cheques to the handwriting expert for authentication of the signatures of the accused and the same was rejected, this Court considering the facts of the case thought it proper to send the disputed cheques to an expert for verification of the signature of the accused. 9. The learned counsel for the petitioner further placed decision of the Hon’ble Supreme Court in the case of T. Nagappa Vs. Y.R. Muralidhar reported in (2008) 5 SCC 633 wherein it was held that the accused has a right to fair trial and he has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. The right to defend oneself to adduce evidence is recognized by Parliament in terms of sub section (2) of Section 243 of Cr.P.C. 10. Considering the submissions made by the learned counsels for both the parties, I am of the view that even though there is no dearth of power with this Court in exercise of revisional jurisdiction to take further evidence or direct it to be taken like an Appellate Court under section 391 of Cr.P.C. but it is seen that the submission made by the learned counsel for the petitioner that the amount mentioned in the cheque and the date mentioned therein and the person to whom it has been issued, has been manipulated by the complainant and the same is in a complete different ink has not been specifically pleaded by the petitioner during course of trial. No specific suggestion in that respect has also been given to the complainant rather suggestion has been given to the complainant that Ext.2 was a blank cheque and that the complainant obtained the same from Amar Chandra Routray and filed the case in connivance with him. In the 313 Cr.P.C. statement, the petitioner had taken a plea that the said cheque was issued in favour of Amar Chandra Routray towards repayment of the loan dues. 11. In the 313 Cr.P.C. statement, the petitioner had taken a plea that the said cheque was issued in favour of Amar Chandra Routray towards repayment of the loan dues. 11. On perusal of the cheque in question, it appears that a sellotape has been pasted on the amount of Rs.11,50,000/- (rupees eleven lakhs fifty thousand only). The learned counsel for the complainant-opposite parties contended that it would be very difficult to accept that the tampering has been done with the amount and Rs.1,50,000/- (rupees one lakh fifty thousand only) has been made as Rs.11,50,000/- (rupees eleven lakhs fifty thousand only) particularly when in the words, the same amount i.e. ‘eleven lakhs fifty thousand’ has been clearly written. The petitioner has not examined Amar Chandra Routray in support of his defence plea. One Nirupama Routray who the wife of the Amar Chandra Routray has been examined as D.W.2 and she has specifically stated that the petitioner had not given her two blank cheques towards clearance of loan amount and she has been declared hostile by the defence. The learned counsel for the complainant-opposite party further contended that in the transaction sheet of the cheque book of the petitioner even though it is indicated that this particular cheque bearing no.327230 was issued on 12.11.2003 to Amar Chandra Routray but there is no reason as to why a blank cheque would be issued in favour of Amar Chandra Routray and in absence of any oral evidence, the handwriting expert’s opinion would not improve the case of the petitioner. 12. Law is well settled that the opinion of a handwriting expert is relevant in view of section 45 of the Evidence Act but it is not conclusive. The sole evidence of a handwriting expert is not normally sufficient for recording a defence finding about the writing being of a certain person or not. Uncorroborated evidence of a handwriting expert is an extremely weak type of evidence. The science of handwriting being imperfect and inaccurate, it is difficult, if not impossible to give the opinion that the writings were in the hand of one and same person. Therefore, the expert opinion must always be received with great caution especially the opinion of handwriting expert. Uncorroborated evidence of a handwriting expert is an extremely weak type of evidence. The science of handwriting being imperfect and inaccurate, it is difficult, if not impossible to give the opinion that the writings were in the hand of one and same person. Therefore, the expert opinion must always be received with great caution especially the opinion of handwriting expert. Even though no time limit could be fixed for filing application for sending the disputed signature or writings to the handwriting expert for comparison and opinion and delay in filing such petition cannot be the sole factor to reject the petition and the exercise of the discretion in that respect would depend on the exigencies so demand, depending upon the facts and circumstances of the case, I am of the view that in the factual scenario, obtaining handwriting expert’s opinion would no way help this Court to arrive at a just conclusion of the case. In a case under N.I. Act, it is the duty of the defence to adduce evidence keeping in view the provision under section 139 of the said Act. It is not the case of the petitioner that at any stage of the proceeding either before the Trial Court or before the Appellate Court, he has been deprived of a fair trial. Though the revision petition was filed on 03.01.2011 and admitted on 13.01.2011 but when it is listed for hearing, this Misc. Case was filed only on 19.01.2017. 13. Therefore, I am of the view that the misc. petition filed by the petitioner has been made for the purpose of vexation and for defeating the ends of justice and the petition being devoid of merits, cannot be entertained at this stage and accordingly, Misc. Case stands dismissed.