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2023 DIGILAW 1089 (RAJ)

Rajkumar Meena v. State of Rajasthan

2023-05-11

CHANDRA KUMAR SONGARA

body2023
ORDER : Chandra Kumar Songara, J. Instant petition under Section 482 of the Code of Criminal Procedure, 1973 has been preferred on behalf of the accused-petitioner against the order dated 05.09.2019 passed by the Court of Additional District & Sessions Judge, No.20, Jaipur Metropolitan, Headquarter, Chomu (herein-after referred to as 'the Revisional Court'), in Criminal Revision No.50/2019, whereby the revision petition filed by petitioner was dismissed and the order dated 25.06.2019 passed by the Court of Additional Chief Metropolitan Magistrate No.22, Jaipur Metropolitan, Headquarter Chomu dismissing the application under section 45 of the Indian Evidence Act, 1872 filed by the petitioner with cost of Rs.1000/-, was confirmed. 2. Relevant facts, in brief, of the present case are that the complainant-respondent has lodged a complaint (Annexure-1) against the petitioner under section 138 of Negotiable Instruments Act, 1881 and submitted his affidavit in evidence. In cross-examination, question was put to the complainant that payment of said cheque was given vide Receipt dated 10.06.2015 (Exhibit-D/2) and it contains signature of complainant. An application was filed by the petitioner under section 45 of Indian Evidence Act on 03.05.2019 stating therein that during cross-examination, the receipt was exhibited as Exhibit-D/2 and executed by the complainant for receiving the cheque amount but the complainant denied about his signature on the receipt. A prayer was also made that signature of complainant be examined by a handwriting expert and compare it on Exhibit-D/2 and on the complaint. The trial Court, vide its order dated 25.06.2019 dismissed the application filed by petitioner with cost of Rs.1000/- (Annexure-3). The petitioner, being aggrieved with the order dated 25.06.2019, preferred a revision petition before the Revisional Court, which was also dismissed vide its order dated 05.09.2019 (Annexure-4). Hence, this petition. 3. Contentions put-forth by learned counsel appearing for the accused-petitioner are that the impugned orders passed by both the learned Courts below are legally not sustainable, being contrary to provisions of law & material evidence available on record. Bare Perusal of Receipt (Exhibit-D/2) reveals that it contains signature of complainant and the complainant had received the cheque amount as well as interest from the petitioner in the presence of two witnesses and on receipt thereof, cheque number has also been mentioned. Bare Perusal of Receipt (Exhibit-D/2) reveals that it contains signature of complainant and the complainant had received the cheque amount as well as interest from the petitioner in the presence of two witnesses and on receipt thereof, cheque number has also been mentioned. The complainant has also not objected for sending the documents for examination to the F.S.L. Hence, it is prayed that the present petition may be allowed and the impugned orders passed by both the learned Courts below be quashed & set aside. It is further prayed that the application filed by petitioner under section 45 of Indian Evidence Act be also allowed directing the learned trial Court to send the Receipt (Exhibit-D/2) produced by petitioner for examination to the handwriting expert. 4. During the course of arguments, in support of his contentions, learned counsel appearing for the accused-petitioner, has placed reliance upon the following judgments :- (i) Krishna & Others v. Krishnaveni & Others, AIR 1997 SC 987 , (ii) Mrs. Kalyani Baskar v. .Mrs. M.S. Sampornam, (2007) 1 WLC S.C. 239, (iii) Dhariwal Tobaco Products Ltd. & Others v. State of Maharashtra & Others, AIR 2009 SC 1032 , (iv) O.P. Sharma v. Ashok Bohara, 2012 (1) WLC 154 RHCB Jaipur and (v) Hanuman Sahay Sharma v. Manish Dhamani, 2013 (1) WLC 56 RHCB Jaipur. 5. Learned Public Prosecutor appearing for the State and the learned counsel appearing for the complainant-respondent No.2 have opposed the submissions made herein-above. Although, learned counsel appearing for the complainant-respondent No.2 has no objection, in case the disputed signature on the alleged document Exhibit-D/2 is sent for examination to the handwriting expert. 6. Heard learned counsel appearing for the parties. Perused the material made available on record as well as the judgments cited herein-above. 7. section 45 of the Indian Evidence Act, 1872 reads as under :- "45. Opinions of experts.-When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting] [or finger impressions] are relevant facts. Such persons are called experts." 8. In the case of Krishna & Others (Supra), Hon'ble Apex Court, in Para No.14, has held as under :- "14. Such persons are called experts." 8. In the case of Krishna & Others (Supra), Hon'ble Apex Court, in Para No.14, has held as under :- "14. In view of the above discussion, we hold that through the revision before the High Court under sub-section (1) of Section 397 is prohibited by sub-section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the courts below. ...................................." 9. In the case of Mrs. Kalyani Baskar (Supra), Hon'ble Apex Court, in Para No.10, has held as under :- "10...............................................As noticed above, Section 243(2) Cr.P.C. 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 hand-writing 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." 10. In the case of Dhariwal Tobaco Products Ltd. & Others (Supra), Hon'ble Apex Court, in Para No.14, has held as under :- "14. It is interesting to note that the Bombay High Court itself has taken a different view. In a decision rendered by the Aurangabad Bench of the Bombay High Court, a learned Single Judge in Vishwanath Ramkrishna Patil (supra), where a similar question was raised, opined as under :- "It is difficult to curtail this remedy merely because there is a revisional remedy available. The alternate remedy is no bar to invoke power under Article 227. What is required as to see the facts and circumstances of the case while entertaining such petition under Article 227 of the Constitution and/or under Section 482 of Criminal Procedure Code. The view therefore, as taken in both the cases V.K. Jain and Saket Gore, no way expressed total bar. What is required as to see the facts and circumstances of the case while entertaining such petition under Article 227 of the Constitution and/or under Section 482 of Criminal Procedure Code. The view therefore, as taken in both the cases V.K. Jain and Saket Gore, no way expressed total bar. If no case is made out by the petitioner or the party to invoke the inherent power as contemplated under Section 482 of Criminal Procedure Code and/or the discretionary or the supervisory power under Article 227 of the Constitution of India they may approach to the revisional Court, against the order of issuance of process." 11. In the case of O.P. Sharma (Supra), Co-ordinate Bench of this Court, in Para No.15, has held as under :- "15. The cases in which the applications are filed at the time of final arguments may deserve to be dismissed on the ground that the accused is trying to delay the judgment of the day. However, every case in which application is filed cannot be rejected mechanically without looking to the facts and circumstances of the case. In the present case, when the application was filed, the complainant had yet to be cross - examined. Obviously, the opinion of the FSL may buttress the petitioner's case that a fraud is being played by the complainant. It is a defence, the petitioner may introduce while cross - examining the complainant. Therefore, the observation of the learned trial Court that the filing of the application is merely to delay the proceedings is unsustainable. For the reasons stated above, this Court allows this petition and quashes and sets aside the order dated 09.11.2009. This Court directs the learned trial Court to immediately send the cheque in dispute to the FSL for its opinion with regard to the genuineness of the alleged petitioner's signature under the over - written amount....................................". 12. In the case of Hanuman Sahay Sharma (Supra), Co- ordinate Bench of this Court, in Para No.7, has held as under :- "7. In view of above settled principle of law and in the interest of justice, it is deemed just and proper that the cheque in question be sent to the handwriting expert, which may also be in the interest of the parties because the opinion so received may fortify the contention raised by any of them. In view of above settled principle of law and in the interest of justice, it is deemed just and proper that the cheque in question be sent to the handwriting expert, which may also be in the interest of the parties because the opinion so received may fortify the contention raised by any of them. Further more, it would enable the learned trial court to reach to a conclusion on the basis of an expert opinion along with other evidence on record. Consequently, this revision petition is allowed. The impugned order dated 5.6.2009 is quashed and set aside. The learned trial court is directed to send the cheque in question for the opinion of the handwriting expert forthwith..............." 13. While rejecting the application filed by accused-petitioner, learned trial Court, vide its impugned order dated 25.06.2019, has observed that during the course of arguments, counsel for the accused has recurred with the facts mentioned in the application and prayed that the application may be accepted and to get the signature on the complaint & signature 'A to B' on Exhibit-D/2 examined by the handwriting expert. Counsel for the complainant has submitted a written reply to the aforesaid application and prayed that signature 'A to B' on Exhibit-D/2 may be sent for examination to the handwriting expert after removing the lamination. 14. While rejecting the revision petition filed by the accused-petitioner, the learned Revisional Court, vide its impugned order dated 05.09.2019, has also observed that during the course of arguments, counsel for the accused, while repeating the facts mentioned in the revision petition, has made an argument that the complainant himself concurred that he has no objection, if Exhibit-D/2 is examined by expert. Despite that, the Subordinate Court had dismissed the application of the accused. 15. Learned Revisional Court has further observed that additionally, Section 397 (2) of Cr.P.C. provides as under :- "The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiring trial or other proceedings." 16. Despite that, the Subordinate Court had dismissed the application of the accused. 15. Learned Revisional Court has further observed that additionally, Section 397 (2) of Cr.P.C. provides as under :- "The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiring trial or other proceedings." 16. Learned Revisional Court has also observed that Hon'ble High Court of Rajasthan, Jaipur Bench, vide its order dated 09.02.2016, in S.B. CRLMP No.482/2016 titled as Vinayak Sales Corporation v. State & Others, has held that the order passed under section 45 of Indian Evidence Act is an interlocutory order and the revision petition is not maintainable against such order under Section 397 (2) of Cr.P.C. 17. It reveals from perusal of impugned orders dated 25.06.2019 & 05.09.2019 passed by the learned trial Court as well as learned Revisional Court that the complainant-respondent No.2 had also not objected to send the document (Exhibit-D/2) for examination to the handwriting expert and to compare the signature 'A to B' on Exhibit-D/2 with the admitted signature of the complainant. 18. In view of the discussion made herein-above and also in the light of judicial pronouncement of Hon'ble Apex Court and Hon'ble Rajasthan High Court (supra), this Court is of the view that the learned Courts below have committed error in passing its impugned orders dated 25.06.2019 & 05.09.2019. 19. Consequently, the present petition is allowed. The impugned orders dated 25.06.2019 & 05.09.2019 passed by the learned trial Court as well as learned Revisional Court are, hereby, quashed & set aside. The application (Annexure-2) filed by petitioner under section 45 of Indian Evidence Act, 1872 is allowed directing the learned trial Court to get the signature-in-question of complainant on Exhibit-D/2 examined by handwriting expert and to compare it with the admitted signature on the complaint (Annexure-1). The expenses of the handwriting expert shall be borne by the petitioner. Miscellaneous application, if any, also stands disposed of.