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2017 DIGILAW 447 (UTT)

Virendra Singh v. State of Uttarakhand

2017-08-22

U.C.DHYANI

body2017
JUDGMENT : U.C. Dhyani, J. 1. The applicant is facing trial under Section 138 of Negotiable Instruments Act before the trial court. In the course of trial, he moved an application for summoning handwriting expert, which was dismissed by learned Judicial Magistrate, Ramnagar, vide order dated 13.05.2016. Aggrieved against the same, applicant preferred a criminal revision, which was also dismissed by learned Addl. Sessions Judge, Ramnagar, vide order dated 01.07.2015. The order passed by learned trial court was affirmed. Hence, present application under Section 482 Cr.P.C. 2. Admittedly, the cheque issued by the accused-applicant was dishonoured. Although, it is the submission of learned counsel for the applicant that the same was not issued to the complainant against any enforceable debt, but that is not the issue before this Court. Learned counsel for the applicant submitted that the cheque was not filled up by the applicant and has been filled up by the complainant. Therefore, he wanted that the handwriting on the cheque be compared with the handwriting of the person concerned. The signatures of the accused-applicant on the cheque are admitted. 3. In this view of the matter, learned trial court did not commit any mistake in rejecting the application of the applicant for comparison of handwriting. Learned revisional court has observed that the cheque was, undoubtedly, dishonoured. Such an application was moved only after the statement of the accused-applicant were recorded under Section 313 Cr.P.C. In his statement under Section 251 Cr.P.C. as well as in his statement under Section 313 Cr.P.C. the accused had admitted giving two blank cheques, signed by him, to the complainant. The revisional court, taking clue from Section 20 of the Negotiable Instruments Act, has observed that the accused-applicant cannot be given any benefit for taking such a plea. Learned revisional court, therefore, aptly remarked that there is no question of comparing the handwriting of the person concerned with the handwriting on the questioned document. There is no infirmity in the orders impugned. 4. Learned Counsel for the State submitted that this application has been filed for the purpose of protracting the trial. 5. 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. 5. 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. (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." 6. 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. 7. 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. 8. 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 and Another, 2009 (14) SCC 677 and Kalyani Baskar vs. Mrs. M.S. Sampoornam, 2007 (2) SCC 258 . The Apex Court has considered this aspect in various judgments viz. in G. Someshwar Rao vs. Samineni Nagehswar Rao and Another, 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 circumstances, the appeal was allowed. Lastly, in G. Someshwar Rao (supra), application was made by the accused to refer the pro-note 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. 9. 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. 9. 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. 10. 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. 11. In the instant case, the signatures on the cheque are not disputed. It is the handwriting on the blank columns, which is sought to be sent for handwriting expert. 12. This Court is unable to take a view different from what was taken by two courts below. 13. Application under Section 482 Cr.P.C. thus fails and is dismissed.