Accused in S.T.No.189/2007 on the file of Judicial First Class Magistrate Court, No-IV, Kollam is the revision petitioner herein.
2. The case was taken on file on the basis of a private complaint filed by the complainant under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act').
3. The case of the complainant in the complaint was that accused borrowed a sum of Rs.1,50,000/- and in discharge of that liability, he had issued Ext.P1 cheque dated 20.12.2003 which when presented was dishonoured for the reason 'funds insufficient' vide Ext.P2 dishonour memo dated 24.12.2003 and that was intimated to the complainant by his banker by Ext.P3 intimation letter dated 26.12.2003. The complainant issued Ext.P4 notice dated 05.01.2004 on 06.01.2004 vide Ext.P5 postal receipt and the same was received by the accused evidenced by Ext.P6 postal acknowledgment. The accused had not paid the amount. So, he had committed the offence punishable under Section 138 of the Act. Hence the complaint.
4. When the accused appeared before the court below, the particulars of offences were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts. P1 to P6 were marked on his side. After closure of the complainant's evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that he had borrowed an amount of Rs.50,000/- from the de facto complainant on 20.10.2000 and issued a cheque putting the year as 2001. Though he had paid the amount with interest, the same was not returned to him and he wanted exorbitant interest. In order to prove his case, the accused has filed Crl.M.P.No.453/07 stating that the actual date of the cheque is 20.10.2001 but it was corrected as 20.10.2003. But, that application was dismissed. In order to prove the case of the complainant, DW1 was examined. After considering the evidence on record, the court below found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo imprisonment till rising of the court and also to pay the cheque amount Rs.1,50,000/- as fine in default to undergo simple imprisonment for three months. It is further ordered that if the fine amount is realized, the same be paid to the complainant as compensation under Section 357(3) of Code of Criminal Procedure. Dissatisfied with the same, the revision petitioner filed Crl.Appeal No.168/2008 before the Sessions Court, Kollam and the same was made over to Additional Sessions Court, (Adhoc) I, Kollam for disposal. Before the appellate court also, he filed Crl.M.P.1849/2010 for sending the disputed cheque for expert opinion on the ground that there is an interlineation of '1' before the '2' shown in the month column of the cheque and that application was dismissed by the appellate court on the ground that the earlier application filed by him before the court below was dismissed and he had a different case before the lower court for sending Ext.P1 for expert opinion and the case forwarded by him is not tallying with the case set up by him for sending the cheque for expert opinion. After hearing both sides, the Additional Sessions Judge dismissed the appeal by the impugned judgment confirming the order of conviction and sentence passed by the court below which is being challenged by the revision petitioner who is the accused before the court below before this court by filing this revision.
5. Heard the Counsel for the revision petitioner, first respondent and the learned Public Prosecutor.
6. Counsel for the revision petitioner submitted that the accused is entitled to raise inconsistent defence and it is for the court to consider whether such defence is plausible or believable. Further, the case of the accused is that there is material alteration of the cheque and that can be found out only by sending the cheque for expert opinion especially when there is difference in the ink used for putting the signature and the other writings in the cheque. Further, if the revision petitioner can able to establish that there is material alteration, then, the complainant is not entitled to get the benefit of the provisions of Section 138 of the Act as any manipulation made in the cheque will make the instrument a void one. Further, the manner in which the figure was written raises a suspicion and that can be found out only by sending that cheque for expert opinion. So, according to the learned Counsel, the observation made by the court below for not sending the cheque for expert opinion is not proper, that will amount to illegality which affect the valuable right of the accused to prove his innocence and serious prejudice has been caused on account of the same. The learned Counsel also submitted that merely because he had not challenged the order passed by the trial court by filing a separate revision, that cannot be a ground for not considering the application for sending it for expert opinion by the appellate court as he is entitled to challenge the same in the appeal and the dismissal of the application by the appellate court before this court as well.
7. On the other hand, the learned Counsel appearing for the first respondent submitted that the accused had no consistent case regarding the amount borrowed, the date on which the cheque was given etc. In the petition filed by him in the lower court, his case was that he had given the cheque with date 20.10.2001 and the year was changed as 2003 and the court below on seeing the cheque found that there is no such alteration. But, the case of the revision petitioner is a different one when he filed an application before the appellate court and his case was that the month '2' was converted into '12' so as to gain the benefit of presenting the cheque and extending the the limitation period for presenting the cheque. Further, the evidence of DW1 also do not tally with the case put forward by him in the application for sending the cheque for expert opinion before the appellate court. So, according to the learned Counsel, the attempt of the petitioner is only to prolong the matter and so, the courts below were perfectly justified in dismissing the applications and rightly found him guilty under Section 138 of the Act and the concurrent findings of court on fact do not call for any interference.
8. Heard the learned Public Prosecutor also.
9. The case of the complainant in the complaint was that accused borrowed a sum of Rs.1,50,000/- and in discharge of that liability, he had given Ext.P1 cheque. The date of borrowal was during December 2003. The case of the accused was that he never borrowed an amount in 2003 as claimed by the complainant. But, he borrowed an amount of Rs.50,000/- during October 2000 and gave a cheque of the year 2001 and that was manipulated and the present complaint was filed and he had paid the amount as well. In order to prove this fact, he examined DW1 - a witness who had seen the transaction.
10. It is also seen from the records that the revision petitioner filed Crl.M.P.No.453/07 before the trial court for sending Ext.P1 cheque for expert opinion as according to him, the year of the cheque was tampered with by the complainant. But, the learned magistrate by perusing the cheque came to the conclusion that there is no such manipulation and dismissed the application. It is true that this order was not independently challenged by the revision petitioner by filing a revision before this court or before the Sessions Court. But, it may be mentioned here that it is not necessary that every order passed by the trial court during the course of trial has to be challenged and if the decision goes against him, he is entitled to challenge any intermediary or interlocutory orders passed by the court below which goes to the route of the matter when filing an appeal taking that as a ground for setting aside the order of conviction and sentence. It appears that such a contention was raised and the dismissal of the application was challenged as well. It is also seen from the records that even during the appellate stage, he filed Crl.M.P.No. 1849/2010 for sending Ext.P1 cheque for expert opinion. There, the ground taken was that there is interpolation of '1' before '2' in the month portion of the cheque and the appellate court dismissed that application on two grounds, No.1 that the earlier application filed by him before the trial court which was dismissed by the trial court was not challenged and that has become final and secondly, he had taken a different contention in the earlier application and the present contention. It appears that both the observations made by the court below for dismissal of the application appears to be unsustainable in law. The accused need only say that there is manipulation in the cheque and it was tampered and it was not presented in the same manner it was given. He may not be knowing which portion of the cheque has been manipulated or tampered at the time when he makes the application. It is true that there is some difference in the evidence given by DW1 and also in the statement given by the accused regarding the transaction. But, it is settled law that the accused is entitled to take inconsistent pleas so as to defend his case and it is for the court to consider and evaluate whether such defence is possible or not. Suppose, one of the defence put forward by the accused depends on expert opinion, then, an opportunity has to be given to the revision petitioner to prove his innocence. Merely because there is some inconsistencies in the evidence or different prayers have been made in the lower court and appellate court are not grounds for rejecting the application for sending the document for expert opinion if such an expert opinion is also required for the purpose of proper adjudication of the case. It is true that expert opinion alone is not sufficient to prove the case. It is only an opinion evidence. But, at the same time if certain things will have to be proved only by scientific methods which cannot be found out by naked eye examination, then, it is always better to get the best evidence by sending the cheque for expert opinion. The perusal of Ext.P1 cheque shows that the ink used for putting the signature and the other writing in the cheque is not the same and there is difference in the ink used for other writings seen in the cheque. Further, PW1 had no explanation for this aspect as well. So, under the circumstances, this court feels that it is necessary in the interest of justice to get the real dispute before court, an expert opinion is required and the courts below were not justified in dismissing the applications filed by the revision petitioner for that purpose. So, under the circumstances, this court feels that the order of conviction and sentence passed by the courts below have to be set aside and the matter has to be remitted to the trial court for the purpose of sending Ext.P1 cheque for expert opinion to find out as to whether there is any tampering in the date portion of the cheque either in the month portion or the year portion as claimed by the revision petitioner and the scope of enquiry should not go beyond that.
So, the revision is allowed and the order of conviction and sentence passed by the court below against the revision petitioner are set aside and the matter is remitted to the court below for fresh disposal for the purpose of sending Ext.P1 cheque to Forensic Science Laboratory, Thiruvananthapuram for getting an opinion as to whether there is any tampering of Ext.P1 cheque regarding the date portion either by interpolating any letter before '2' in the month portion or any manipulation made in the year portion after correcting any existing number mentioned therein or the over writing if any found in Ext.P1 is a natural one which has been made at the time of writing the number even at that time and the petitioner is directed to deposit the necessary expenses within the time fixed by the court below and get the report obtained from the Forensic Science Laboratory, Thiruvananthapuram within a period of three months from the date of sending the cheque and after getting the report, dispose of the case as expeditiously as possible at any rate within one month from the date of receipt of the expert's opinion. Parties are directed to appear before the court below on 27.11.2014. If the complainant is not in a position to appear, then, he may be permitted to appear through Counsel as his presence is not required for the purpose of the trial.
Office is directed to communicate this order to the concerned court immediately and send back the records to the courts below immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge