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Uttarakhand High Court · body

2017 DIGILAW 306 (UTT)

Anil Kumar Yadav v. State of Uttarakhand

2017-06-05

U.C.DHYANI

body2017
JUDGMENT : 1. The applicant, by means of present application under Section 482 Cr.P.C., seeks to quash the order dated 03.09.2015, passed by learned Sessions Judge, Udham Singh Nagar in Criminal Revision No. 33 of 2016, Anil Kumar Yadav vs. State of Uttarakhand & another, and order dated 17.02.2016, passed by learned 1st Additional Civil Judge (J.D.)/Judicial Magistrate, Rudrapur, District Udham Singh Nagar, in criminal case No. 4105 of 2015, M/s Mariya Industries vs. Anil Kumar Yadav and further be pleased to direct the learned Trial Court/1st Additional Civil Judge (J.D.),/Judicial Magistrate, Rudrapur to call a report from the handwriting expert of the Government Forensic Lab Dehradun asking it whether the writing over the cheque no. 180405 and deposit form dated 27.10.2014 are same or not and only thereafter pass the final order in criminal case no. 4105 of 2015, M/s Mariya Industries vs. Anil Kumar Yadav. 2. The complainant-respondent filed a criminal complaint case against the accused-applicant under Section 138 of the Negotiable Instruments Act. Complainant’s evidence was closed. Statement under Section 313 Cr.P.C. was recorded. The criminal complaint case was fixed for defence evidence. At this stage, an application for comparing the description/particulars made in the cheque with the admitted handwriting of the accused was filed. The signatures of the accused on the cheque were admitted. Said application was dismissed by the Trial Court. Aggrieved with the same, the accused filed a criminal revision which too was dismissed. Feeling aggrieved against the same, present application under Section 482 Cr.P.C. has been filed. 3. The accused has admitted his signatures on the cheque which was delivered to respondent no.2. It is the submission of learned counsel for the applicant-accused that the handwriting in the cheque does not belong to him. Learned Trial Court, by a reasoned order, dismissed the prayer for comparing the handwriting on the cheque with the admitted handwriting of the accused by a reasoned and elaborate order. When the criminal revision was preferred by the accused, learned Revisional Court, again by an elaborate and reasoned order, dismissed the criminal revision. This Court need not delineated those reasons which have been given by two courts below for the sake of brevity. The applicant wanted the handwriting on the cheque to be compared with the handwriting on the bank slip. 4. This Court need not delineated those reasons which have been given by two courts below for the sake of brevity. The applicant wanted the handwriting on the cheque to be compared with the handwriting on the bank slip. 4. The accused has admitted his signatures on the cheque, while leaving the cheque blank, thereby giving prima facie authority of the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not accepting the amount covered by the stamp. The accused, so signing the cheque shall be liable upon such instrument, in the capacity in which he signs the same, to any holder in due course for such an amount. 5. Section 20 of the Negotiable Instruments Act reads as follows: “20. Inchoate stamped instruments.—Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in 1[India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.” 6. Learned Counsel appearing on behalf of the Respondent No.2 submitted that this application has been filed for the purpose of protracting the trial. He submitted that the accused had never raised this issue at any time. He submitted that after service of statutory notice upon the accused, he had not given reply to the same. He submitted that if the cheques had been issued as security and there was no liability, the accused would have immediately given reply denying his handwriting at that stage itself. 7. He submitted that after service of statutory notice upon the accused, he had not given reply to the same. He submitted that if the cheques had been issued as security and there was no liability, the accused would have immediately given reply denying his handwriting at that stage itself. 7. In large number of complaints which are filed under section 138 of the Negotiable Instruments Act, the question as to whether the application made by the accused for sending a document or cheque to handwriting expert should be allowed or not has to be decided by the learned Magistrate. On the one hand, in view of the provisions of section 243 sub-clause (2) of the Cr.P.C., the accused has a right to make an application 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, on the other hand, discretion is vested in the Magistrate for rejecting the said application if he comes to the conclusion that it is made for the purpose of protracting the trial or for defeating the ends of justice. It will be appropriate, at this stage, therefore, before taking into consideration the rival submissions made in respect of the impugned order passed by the Magistrate, to consider the legal position and, for that purpose, it may be necessary to take a look at the relevant provisions. Section 243 of the Cr.P.C. reads as under:- "243. Evidence for defence.- (1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record. Section 243 of the Cr.P.C. reads as under:- "243. Evidence for defence.- (1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record. (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. (3) The Magistrate may, before summoning any witness on an application under sub-section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court." 8. The said provision clearly envisages that a fair opportunity has to be given to the accused to set up his defence and, therefore, he has a right to make an application for issuing summons for examining any witness of his choice or for production of any document or thing. However, this right is subject to permission being granted by the Magistrate. The Magistrate is also empowered under sub-clause (2) of section 243 to reject such application if he feels that it is filed for protracting the proceedings. 9. By virtue of this provision, therefore, the responsibility is cast on the Magistrate to act in a fair, judicious and yet balanced way to ensure that the accused also gets a fair opportunity of defending the case and, at the same time, also to ensure that this provision is not misused by the accused only for the purpose of protracting the trial or to defeat the ends of justice. This becomes very relevant in a complaint which is filed under section 138 of the Negotiable Instruments Act, which is to be disposed off in a summary manner and as is laid down under section 143(3) of the Negotiable Instruments Act within six months. 10. Applications are also made for sending the document to handwriting expert. Section 45 of the Evidence Act lays down that the opinion of expert in certain circumstances is relevant. The opinion of the handwriting expert can be relied upon for the purpose of corroborating circumstantial evidence. Taking into consideration the aforesaid provision under the Cr.P.C., it will have to be seen whether the ratio of the judgments on which reliance is placed by either side is applicable to the facts of the present case. The Apex Court has considered this aspect in various judgments viz. in G. Someshwar Rao vs. Samineni Nagehswar Rao & Anr., reported in 2009 (14) SCC 677 and Kalyani Baskar vs. Mrs. M.S. Sampoornam 2007 (2) SCC 258 . In Nagappa vs. Y.R. Muralidhar, 2008 (5) SCC 633 and Kalyani Baskar (supra), the accused had denied the signature on the cheque and an application was made by him for sending the cheque to the handwriting expert, which was rejected and, under these circumstances, the Apex Court held that the accused cannot be convicted without an opportunity being given to her to present her evidence. After referring to provisions of section 243 of the Cr.P.C., the Apex Court observed, in the facts of the said case, that at the initial stage itself the accused had filed an application before the Magistrate under section 245 of the Cr.P.C. and had 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 Negotiable Instruments Act and had requested for sending the cheque in question for the opinion of the handwriting expert after the respondent had closed her evidence and, it was, therefore observed that the Magistrate should have granted such request, unless the Magistrate had come to the conclusion that the appellant was protracting the trial. Ratio of this judgment will not apply to the facts of the present case since, in the present case, the applicant/accused has not disputed his signature on the said cheque but he is disputing the handwriting in filling up the other particulars of the said cheque. In T. Nagappa (supra), the accused had filed an application for referring the cheque in question for examination by the Director of Forensic Science Laboratory for determining the age of his signature, contending that the respondent had obtained the signed cheque from him in the year 1999 as a security for hand loan of Rs 50,000/- which had been paid back, but instead of returning the cheque, the same had been misused by entering a huge amount which he did not owe to the appellant. The Trial Court as well as the High Court in the said case relied on section 20 of the Negotiable Instruments Act and rejected the contention of the accused having regard to the provisions of section 20 of the Negotiable Instruments Act. The Apex Court however observed that when one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instrument either wholly blank or having written thereon an incomplete negotiable instrument, he gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The Apex Court, after referring to provisions of section 243 of the Evidence Act and the right of the accused to have a fair trial and the right to defend himself as part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India, has held that an opportunity must be given to the accused for adducing evidence in rebuttal thereof. The Apex Court also took into consideration the observation made by the Apex Court in Kalyani Baskar (supra) more particularly in para 12 and under the said circumstances the appeal was allowed. Lastly, in G. Someshwar Rao (supra), application was made by the accused to refer the pronote and the cheque to the handwriting expert. The application was dismissed. The second application, thereafter, was filed for the same reason. However, the second application was also dismissed. Lastly, in G. Someshwar Rao (supra), application was made by the accused to refer the pronote and the cheque to the handwriting expert. The application was dismissed. The second application, thereafter, was filed for the same reason. However, the second application was also dismissed. The Apex Court, after referring its earlier judgments in Kalyani Baskar (supra) and in T. Nagappa (supra) observed in para 13 that since the accused had filed two successive applications; the second application was not maintainable. It also observed that this itself goes to show that he intended to delay the disposal of the matter and he could have examined his own expert. However, after having so observed, the Apex Court, in para 14, in view of the peculiar facts and circumstances, granted an opportunity to the accused to examine an expert at his own costs. 11. In the humble opinion of this Court, ratio of the above three judgments would not apply to the facts of the present case since the learned Magistrate has rejected the application filed by the accused on the ground that an attempt was made to protract the trial and therefore he had exercised his discretion vested in him under section 243(2) and had given elaborate reasons why he felt that the application was made to protract the trial. 12. In the case of T. Nagappa (supra) the case of the accused was that his signature was obtained in 1999. He, therefore, did not dispute his signature but disputed time at which it was made and, therefore, felt that it should be sent to the Forensic Science Laboratory to determine the age of the ink. The facts of the said case were, therefore, quite different than the facts of the present case and, lastly, in G. Someshwar Rao (supra), the Apex Court, after having observed that the second application made by the accused was not maintainable and also after having noted that this was made to protract the trial, granted the application in view of the peculiar facts and circumstances of the said case. Ratio of both these judgments therefore will not apply to the facts of the present case. 13. Ratio of both these judgments therefore will not apply to the facts of the present case. 13. Taking into consideration the aforesaid judgments, therefore, if an application is made for sending the document to the Handwriting Expert particularly in a complaint which is filed under section 138, the Magistrate has to consider the said application and taking into consideration the facts of each case decide as to whether it is a fit case for sending the said document to the Handwriting Expert. Proceedings under section 138 are of a summary nature and the Act itself contemplates that the said trial should be over within a period of six months. There is a tendency on the part of the accused to protract the trial as much as possible. On the one hand, it is true that accused has a right to rebut the presumption which is raised under section 118 and 139 of the Negotiable Instruments Act and, for that purpose, a fair opportunity has to be given to him. On the other hand, it is the duty of the Magistrate to ensure that by filing frivolous application, accused does not protract the trial. Therefore, the learned Magistrate has to consider whether the application filed by the accused needs to be granted or not, taking into consideration the genuineness of the application and also after taking into consideration individual facts of the case. Merely because the accused has a right of being given fair opportunity, it cannot be said that in each and every case, whenever applications are filed for sending the document to Handwriting Expert, the same should be allowed. 14. In the present case, however, in the considered opinion of this Court, the learned Magistrate was justified in rejecting the application filed by the accused. There is no dispute regarding the signature on the said cheques. The complainant has denied the suggestion that he had filled in the details of the cheques. 15. Under these circumstances, therefore, the learned Magistrate was justified in coming to the conclusion that it was not necessary to send the cheques to the Handwriting Expert. There is no dispute regarding the signature on the said cheques. The complainant has denied the suggestion that he had filled in the details of the cheques. 15. Under these circumstances, therefore, the learned Magistrate was justified in coming to the conclusion that it was not necessary to send the cheques to the Handwriting Expert. If it is a defence of the accused that blank cheque was given as a security, whether any authority was given to the complainant to fill in the contents will have to be decided after evidence is led by both parties and, for that purpose, it is not necessary to send it to the Handwriting Expert. As many as eight criminal complaints are pending against the accused. The other day he moved applications for transfer of these Criminal Complaint Cases to different districts. Such applications under Section 407 Cr.P.C. were allowed by this Court purely in the interest of justice. This Court should not substitute its discretion for the discretion exercised by two courts below. No reply was given to the statutory notice alleging that contents were arbitrarily filled up by the complainant. It is clear from the facts and circumstances of the case that the application is only made to protract the trial. 16. Criminal Misc. Application thus fails and is dismissed.