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2018 DIGILAW 503 (JK)

Naresh Kumar v. Kamal Kishore Gupta

2018-07-12

M.K.HANJURA

body2018
JUDGMENT : 1. In this petition, filed under Section 561-A of the Code of Criminal Procedure, the petitioners crave the indulgence of this Court in quashing the order dated 18.08.2014, passed by the learned Special Railway Magistrate, Jammu, in case titled Kamal Kishore vs. Naresh Kumar & Another, whereby the application of the petitioners herein for sending the Cheque No.438959 dated 18.01.2008 drawn on UCO Bank Gandhi Nagar, Jammu, to Forensic Science Laboratory, for having expert opinion, was dismissed. 2. Before appreciating and looking into the merits of the petition, it will be profitable to give a brief account of the facts and the grounds that forced and coerced the petitioners to file this petition. It has been pleaded in the petition that the respondent No.1 has filed a criminal complaint for the commission of offences punishable under Section 138 of the Negotiable Instruments Act read with Section 420 RPC against the petitioner and alleging therein that the petitioners are the partners of a firm, i.e., proforma respondent herein and they have issued the alleged cheque on 18.01.2008 for an amount of Rs.670000/- (Rupees Six lac and Seventy thousand only) in discharge of legally enforceable debt, i.e., a loan which was alleged to have been taken by the petitioners for running the partnership business of the firm herein and on being summoned by the trial Court the petitioners herein were admitted to bail. The substance of accusation was put to them under Section 242 Cr. P.C. wherein the petitioner No.1 stated that the cheque in question bears his signature but he denied that the cheque was issued in discharge of any legally enforceable debt to the respondent No.1/complainant before the trial Court, whereas the petitioner No.2 has denied his signature in the said statement. 3. That the petitioners and the alleged accused before the trial Court did not plead the guilt and they were put to trial and during the course of the trial the complainant/respondent No.1 herein led his evidence by way of affidavits and in his cross-examination, the respondent No.1 herein, has stated that the petitioners herein (alleged accused) have given the signed cheque after filling the same and after putting the seal of the firm on it. It is pertinent to mention here that the evidence of the respondent No.1 was closed and incriminating circumstances appearing therein were put to the petitioners herein in terms of Section 342 Cr. P.C. wherein they have taken the defence that the cheque is a stolen one and neither the amount nor the date, or the name of complainant/respondent No.1 herein was written by the petitioners nor was the seal of the proforma respondent put on the cheque in question by the petitioners. It was also specifically explained that the cheque is a forged one and needs to be examined by an expert of FSL. 4. The learned trial Court after taking an overall view of the entire gamut of controversy raised by the accused, that are the petitioners before this Court, in the application for sending the cheque dated 18.01.2008 drawn on UCO Bank, Gandhi Nagar, Jammu, to the Forensic Science Laboratory, for having expert opinion, vide order dated 18.08.2014 dismissed the application of the petitioners by holding that there is no need to send the cheque in dispute for FSL opinion inasmuch as the accused No.2 has himself admitted his signatures on the disputed cheque in his statements under Section 242 and 342 of the Cr. P. C. recorded by the Court and by the same order the accused was directed to deposit the diet expenses of the defence witnesses and thereafter the defence witnesses were directed to be examined. The accused, that are petitioners before this Court, have assailed the aforesaid order dated 18.08.2014 passed by the learned trial Court in this petition under Section 561-A of the Cr. P.C. and they have craved for the indulgence of this Court in quashing the same on the grounds, inter-alia, that the trial Court has passed the order in a casual and mechanical manner and it has not appreciated the controversy involved in the matter in the right perspective. It is well settled principle of law that the cheque can be stated to be executed by the person if he himself issues the cheque in discharge of his legally enforceable debt after filling the amount, date and account number. It is well settled principle of law that the cheque can be stated to be executed by the person if he himself issues the cheque in discharge of his legally enforceable debt after filling the amount, date and account number. In the instant case, it is a clear cut case of the petitioner that they neither filled the amount, nor the date or the account number in the cheque and respondent No.1 after getting the cheque has filed the complaint for getting the money which in fact, is not a legally enforceable debt. It is submitted that during the course of the statement of respondent No.1 a specific question was put to him as to whether he is ready for narco-analysis test and he replied it in negative and when he was asked to spell out the reason he stated that he knows that truth will come out. The truth is that by subjecting himself to narco analysis test the petitioners would have been exonerated as they have not executed the cheque and there is presumption against the respondent No.1 that he has himself written the cheque and made the valuable security/cheque. It is further submitted that when the respondents found that the cheque was stolen in the year 2007, they presented the same for encashment in the month of January, 2008 whereas the life of the cheque is only three months from the date of its issuance. In view of the aforesaid facts and circumstances, the cheque is required to be examined by the expert in FSL and the trial Court has not appreciated the aforesaid facts and circumstances of the case and has passed the order impugned which is illegal and requires to be quashed. 5. Heard and considered. 6. The order of the learned trial Court cannot withstand the scrutiny of law. The law is that the accused in a fair trial which is a sine qua non of the criminal jurisprudence has to be afforded an appropriate opportunity to prove his defence. The phrase “fair trial” has been defined in P. Ramanatha Iyer’s “Advanced Law Lexicon” 2005 edition (page 1766) to mean as under: “A trial which is fair and proper in contemplation of law, viz, that which the law secures to the party (St. Paul R. Co. v. Cardner. 18. The phrase “fair trial” has been defined in P. Ramanatha Iyer’s “Advanced Law Lexicon” 2005 edition (page 1766) to mean as under: “A trial which is fair and proper in contemplation of law, viz, that which the law secures to the party (St. Paul R. Co. v. Cardner. 18. Am Rep 334)’ “Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried, is eliminated.” “The failure to hear material witness is certainly denial of ‘fair trial’ Zahira Habibulla H. Sheikh v. State of Gujarat, AIR 2004 SC3467 : 2004 SCC (Cr) 999.” 7. The Supreme Court in the case titled T. Nagappa v. Y. R. Muralidhar reported in 2008(3) Supreme 196 , while dealing with a matter identical to the present one held as under: “When a contention has been raised that the complainant has misused the cheque, even in a case where a presumption can be raised under Section 118(a) or 139 of the said Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. As the law places the burden on the accused, he must be given an opportunity to discharge it. An accused has a right to fair trial. He has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognized by the Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure, which reads as under : "Section 243 - Evidence for defence. The right to defend oneself and for that purpose to adduce evidence is recognized by the Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure, which reads as under : "Section 243 - Evidence for defence. (1) (2) If the accused, after he had 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." 8. What should be the nature of evidence is not a matter which should be left only to the discretion of the Court. It is the accused who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused in terms of sub-section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses etc. If permitted to do so, steps there for, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protracting the trial or summon witnesses whose evidence would not be at all relevant. 9. The learned Trial Judge as also the High Court rejected the contention of the appellant only having regard to the provisions of Section 20 of the Negotiable Instruments Act. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protracting the trial or summon witnesses whose evidence would not be at all relevant. 9. The learned Trial Judge as also the High Court rejected the contention of the appellant only having regard to the provisions of Section 20 of the Negotiable Instruments Act. The very fact that by reason thereof, only a prima facie right had been conferred upon the holder of the negotiable instrument and the same being subject to the conditions as noticed hereinbefore, we are of the opinion that the application filed by the appellant was bona fide”. 8. Again in the case of Kalyani Baskar v. M. S. Sampornam reported in 2006 (9) Supreme 823 , the Apex Court laid down as under: “12. Section 243 (2) is clear that a Magistrate holding an inquiry under the Cr. PC 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 hand-writing 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 hand-writing 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 courts should be jealous in seeing that there is no breach of them. 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 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 Cr. PC 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) Cr. PC 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. 9. Applying the ratio of the law laid down above to the instant case, the accused is the person who knows how to prove his innocence, and he cannot be deprived of that right. The Magistrate was obliged to send the cheque for enabling the same to be compared by a handwriting expert, the purpose being to compare the writing on the cheque with the admitted writing or the signatures of the accused so that the Magistrate could reach at his own conclusion with the assistance of the expert. The accused have a right to rebut the case of the complainant and the Magistrate having declined to send the cheque for the examination and opinion of the handwriting expert has deprived them of an opportunity which is against the concept of fair trial that includes fair and proper opportunity allowed by law to prove their innocence. 10. The accused No. 2 has admitted that he signed the cheque but execution and issuance of cheque are two different concepts. The word “issue” connotes to “give something to somebody” and issuance of cheque does not mean drawing of cheque. 10. The accused No. 2 has admitted that he signed the cheque but execution and issuance of cheque are two different concepts. The word “issue” connotes to “give something to somebody” and issuance of cheque does not mean drawing of cheque. Proof of the issuance of giving a signed cheque by the accused to the complainant alone will not be sufficient to constitute an offence under section 138 Negotiable instruments Act. The Court has to satisfy itself that the cheque was signed by the accused and the writing in the body of the cheque was made by the accused themselves or it was written on their asking. The accused has to be given an opportunity to prove his case and admission of signature in a cheque alone will not constitute the admission of the execution of the cheque. Both the accused have at the very outset that is at the time of the recording of their statements under Section 242 Cr. PC stated it before the Court that the cheque was stolen where after they closed the account. Therefore, it was imperative for the trial Court to accede to the request of the accused in order to arrive at a just conclusion with the assistance of the expert. 11. Viewed in the above context, the order dated 18.08.2014, passed by the learned Special Railway Magistrate, Jammu in case Kamal Kishore v. Naresh Kumar and Another, is quashed, as a sequel to which, the petition of the petitioner is allowed. Accordingly, the disputed document shall be referred to the expert for ascertaining whether the body of the cheque is in the handwriting of the accused and what is the age of the ink and the Court shall thereafter act according to the settled principles and procedures, in affording appropriate opportunity to the accused to prove his defence. The Court below shall follow the prescribed procedure for referring the document to the expert. 12. Record of the trial Court be returned forthwith.