This Criminal Revision has been preferred against the order, dated 08.06.2010 made in Crl.M.P.No.6017 of 2010 in C.C.No.417 of 2006 on the file of the Judicial Magistrate, Padmanabhapuram, Kanyakumari District.
2. It is seen that the aforesaid miscellaneous petition was filed under
Sections 293 and
311 of Cr.P.C, seeking an order to send the document for expert opinion. It is an admitted fact that the case was taken on file on the complaint given by the respondent herein under Section 138 and 142 of Negotiable Instruments Act r/w
Section 200 Cr.P.C.
3. As per the complaint given by the respondent before the court below, the petitioner herein had issued a cheque, dated 07.08.2006 for a sum of Rs.2,00,000/- drawn on State Bank of Travancore, Thiruvattar Branch, in favour of the respondent for the amount due and payable to him. When the cheque was sent for encashment, the same was dishonoured due to insufficient funds in the bank account and returned to the respondent / complainant on 16.09.2006. On 27.09.2006, the respondent / complainant sent a legal notice to the petitioner / accused demanding the cheque amount. According to the respondent, having received the legal notice, without making any payment, the petitioner sent a reply with false averments, hence, the criminal complaint was filed by the respondent before the court below.
4. From the copy of the criminal miscellaneous petition, it is seen that the petitioner / accused filed the aforesaid petition before the court below, seeking the following relief :
"Hence, it is most humbly prayed that this Hon'ble Court be pleased to send the cheque for comparison with the specimen to the hand writing expert in the interest of justice."
5. It is an admitted fact that the petitioner / accused had sought an order to send the cheque relating to this case for expert opinion for comparison with the specimen. It is an admitted fact that after the closing of complainant's evidence, the case was posted for questioning the accused under
Section 313 Cr.P.C, subsequently, the petitioner / accused examined herself as D.W.1. As per the certified copy of the deposition, it is made clear that the petitioner has admitted her signature available in the cheque. According to her, there was one saju, son of one Gopala Panicker, working in her house as driver, who was attending her house hold work and he used to commit theft of small amounts, hence, he was sent out from her house. According to the petitioner / accused, she had handed over the signed blank cheque to the said saju for making certain payments, later on , she came to know that one of the said cheques was misused for the purpose of filing this case. In her cross-examination, the petitioner has not denied her signature available in the dishonoured cheque, however, she has stated that the cheque was not filled up by her.
6. According to the petitioner, the respondent / complainant was a stranger to her. On the other hand, the complainant has stated in his evidence that he is a relative and was close to the petitioner / accused for number of years, hence on 01.07.2006, he paid Rs.2 lakhs as hand loan to the petitioner / accused to attend her urgent needs, for which she issued a cheque, dated 07.08.2006. According to him, it was filled up and signed only by her.
7. In the deposition, the petitioner / accused has stated that her husband was working in a hospital, attached to the rubber corporation as Pharmacist and that she has estate of 8 acres of rubber plants, apart from two other acres of land. As per her evidence, it is seen that she was managing the estate with the help of servants and she is not an illiterate person.
8. As contended by the learned counsel appearing for the respondent, the defence raised by the petitioner that she had handed over a signed blank cheque to her servant, who was working as her car driver to make some payment could not be accepted, considering her status and other factors. Learned counsel appearing for the respondent also drew the attention of this court to the copy of the reply notice sent by the petitioner to the respondent, wherein she has not stated that a blank signed cheque was handed over to the said saju, who was a car driver of the petitioner / accused. Learned counsel appearing for the respondent submitted that the defence raised by the petitioner / accused belatedly is only an after thought to protract the proceedings initiated under Section 138 of Negotiable Instruments Act.
9. In State of Maharashtra vs. Sukhdeo Singh reported in AIR 1992 SC 2100, the Hon'ble Apex Court has held as follows :
"Court should be slow to compare disputed document with admitted document for comparison although
section 73 empowers the court to compare disputed writings with the specimen / admitted documents shown to be genuine. Prudence demands that Court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen / admitted writings is not of high standard."
10. In T.Nagappa vs. Y.R.Muralidhar reported in 2008 (5) SCC 633, the Hon'ble Apex Court has held that though there could be presumption drawn under Section 118 (a) or 139 of Negotiable Instruments Act, when there is a defence raised by the accused that the complainant had misused the cheque, opportunity must be given to the accused for adducing evidence, in rebuttal thereof. Since the law places burden on the accused, he must be given an opportunity to discharge the burden. The Hon'ble Apex Court has further held as follows : "8.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 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognised by Parliament in terms of sub-section (2) of
Section 243 of the Code of Criminal Procedure, which reads as under: "243. Evidence for defence -(1) (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."
9.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 known 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 being 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 therefor, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant."
11. In Kalyani Baskar vs. M.S.Sampoornam reported in 2007 (2) CTC 364, the Hon'ble Apex Court has held as follows :
"12.Section 243(2) is clear that a Magistrate holding an inquiry under the Cr.P.C. 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. 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.P.C. 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.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 ."
12. This Court relying on the decision rendered by the Hon'ble Apex Court in Kalyani Baskar vs. M.S.Sampoornam reported in 2007 (2) CTC 364 and the decision rendered by this Court in Ramakrishnan P.R vs. P.Govindarajan reported in 2007 (1) MLJ (Crl) 1297, (M.Jeyapaul,J) rejected the plea of the accused to send the cheque for expert opinion to find out the age of the ink used in the cheque.
13. In P.Arumugam vs. Rajamani, reported in 2007 (1) LW (Crl) 491, relying on the decision rendered by the Hon'ble Apex Court in Kalyani Baskar vs. M.S.Sampoornam reported in JT 2007 (1) SC 77, this Court (K.N.Basha, J) allowed the revision petition and directed the Court below to send the disputed document for expert opinion.
14. The decisions of this Court referred to above, seem to be contra, but the cases have been decided differently by the two learned Judges of this Court, only based on the rulings of the Hon'ble Apex Court, on the available materials and admitted facts and circumstances of each case. Therefore, I am of the view that there is no contradiction in the view taken by two learned Judges of this Court.
15. In Kalyani Baskar vs. M.S.Sampornam, reported in 2007 (2) CTC 364 and T.Nagappa vs. Y.R.Muralidhar reported in 2008 (5) SCC 633, the Hon'ble Supreme Court has categorically held that reasonable opportunity must be given to the accused to discharge his burden. It is not in dispute that under Sections 118
(a) and 139 of Negotiable Instruments, the Court can draw legal presumption, however, the same is only a rebuttable presumption.
16. It is seen that Section 118 (a) of Negotiable Instruments Act reads as follows :
"118 Presumptions as to negotiable instruments - Until the contrary is proved, the following presumption shall be made : -
(a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."
17. Similarly,
Section 139 of Negotiable Instruments Act reads thus : "139. Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability."
18. It is well settled that there is a presumption of execution of the instrument under the Negotiable Instruments Act, if the signature available in the dishonoured cheque is admitted by the person, who issued the same, however, the accused is entitled to adduce rebuttal evidence, as it is a rebuttable presumption and no one shall be convicted without providing reasonable opportunity to adduce rebuttal evidence and to disprove the legal presumption. It is a settled proposition of law that "fair trial" includes fair and reasonable opportunity being given, in spite of the legal presumption under the Negotiable Instruments Act, in order to prove the innocence of the accused. However, it has been made clear by the Hon'ble Apex Court that no person shall abuse the process of the court by deliberately adopting delay tactics.
19. The Hon'ble Apex Court in T.Nagappa's case has categorically held that right to defend is a fundamental right as enshrined under
Article 21 of the Constitution of India and the right to defend oneself, for that purpose to adduce evidence is recognised by the Parliament, as per sub-section (2) of
Section 243 of the Code of Criminal Procedure. However, it is well settled that no one is entitled to adopt delay tactics or abuse the process of law or the court under the guise of reasonable opportunity.
20. In Kalyani Baskar's case, the Hon'ble Supreme Court has categorically held that the Magistrate, empowered to consider the plea for sending the cheque for the opinion of any hand writing expert has to order for expert opinion, unless he thinks that the object of the appellant is vexation or delaying the criminal proceeding. If the object of the accused is apparent that he is adopting delay tactics, without any justifiable reason, the Magistrate has to reject the request for sending the document for expert opinion. It is the judicial discretion of the Magistrate, who has to decide the issue based on the admitted facts and circumstances. If there is no delay tactics and the request is bonafide, it is the duty of the the Magistrate to send the document for expert opinion. If there is apparent delay tactics, adopted by the petitioner / accused, in order to cause delay and to protract the criminal proceeding, it has to be construed an abuse of process of the Court and accordingly, the request has to be rejected by the Magistrate, as ruled by the Hon'ble Apex Court in various decisions.
21. In the instant case, after the dishonour of the cheque on the ground of insufficient funds, the respondent / complainant had issued a legal notice stating the details of issuance of the cheque by the petitioner / accused in favour of the respondent / complaint. The legal notice was received by the petitioner / accused and she has raised a defence, stating that the respondent / complainant was a stranger to her. However, from the copy of the deposition of the petitioner / accused, it is seen that she has admitted that her elder brother was one Thopias. However, in the cross-examination, the petitioner has replied that she does not know whether her maternal uncle has four children or not, though she was cordial in attending the marriage of Rani, daughter of her said maternal uncle, Thopias. She has further stated that she does not know Saviour, husband of the said Rani, who is the sister's son of the complainant, Ramasamy. In her evidence, she has categorically stated that she had handed over signed blank chegue to one, Saju, her car driver, that was misused by the respondent / complainant, a stranger. However, she has not stated anything about the same in her reply notice for the reasons best known to her. As contended by the learned counsel appearing for the respondent, the petitioner has raised a defence without raising the same in her reply notice, even without stating the same, while she was questioned under
Section 313 Cr.P.C.
22. Similarly, it is clear from the copy of the deposition of the petitioner as D.W.1 that though the petitioner was cordial in attending the marriage of uncle's daughter, Rani, in order to avoid the close relationship of the said Rani with the complainant and to maintain her stand that the complainant was a total stranger to her, the petitioner has gone to the extend of saying that she does not know whether her maternal uncle, Thpias has four children or not.
23. Only after the closure of the complainant's evidence, questioning under
Section 313 Cr.P.C and also after her defence evidence, she has come forward with a petition, seeking an order to send the document for expert opinion. It is well settled as per Indian Evidence Act that admissions needs no proof. In the instant case, the petitioner / accused has not disputed her signature available in the cheque.
24. Even as per the petition filed in the aforesaid criminal miscellaneous petition, she has simply stated that the cheque be sent for comparison with the specimen. Having a rubber estate, administering the estate with the help of workers, including car driver, the petitioner could not have issued a signed blank cheque to her driver, who had already committed small thefts, according to her. Being a normal prudent person, administrator of a Rubber Estate, she was aware that there was a possibility that any amount be filled up in favour of any person, if she hand over a blank signed cheque to her driver. Even if it is so, nothing could have prevented her from stating the defence atleast in her reply notice. The aforesaid conduct of the petitioner / accused coupled with the delay caused in various stages would show that the object of the petitioner is not bonafide, which could be construed by the Court as vexation or delaying the criminal proceedings, as held by the Hon'ble Apex Court in Kalyani Baskar's case.
25. It is a settled proposition of law that reasonable opportunity must be given to the accused for fair trial to adduce rebuttal evidence, as there is possibility of legal presumption under Negotiable Instruments Act. However, apparent abuse of process of court in adopting delay tactics cannot be permitted by any court. Whether the relief sought for is to prove the innocence of the petitioner / accused or adopting only delay tactics could be legally inferred by the Court, only by the conduct of the party, which is revealed by the admitted facts and undisputed materials available on record.
26. The Court has to take judicial notice that all developed countries are mostly encouraging cheque transactions, as the same is essential for commercial and economic development and encouraging cheque transactions would also considerably prevent tax evasion. The frivolous defence raised that by any person adopting delay tactics and protract the case filed under Section 138 of Negotiable Instruments Act, for decades together would certainly discourage the cheque transactions in general and therefore, I am of the view that it is the duty of the courts to decide the issued based on the undisputed factual aspects scrupulously to decide whether the request of the petitioner to send the disputed document for expert opinion is bonafide or vexation or delaying the criminal proceedings, as ruled by the Hon'ble Apex Court and accordingly, just and proper order be passed.
27. Having the required educational qualification, economic status, dealing with cheque transactions and administrating Rubber Estate, no reasonable prudent person could raise a defence that signed blank unfilled cheques were handed over to a car driver or signed unfilled cheque was kept, that was lost during transit and that was misused by the complainant. Unfortunately, the same is a general defence in the cases relating to Negotiable Instruments Act, though the same could not be accepted by any reasonable prudent person. Even if such a defence is raised, it could not be an after thought with a view to protract a criminal proceeding, as ultimately it would be an abuse of process of the court, for which no one is entitled.
28. If the object of the petitioner is vexation or delaying the criminal proceedings, to meet the ends of justice, the Court, in order to prevent the abuse of adopting delay tactics, has to dismiss the same. In the instant case, I am of the view that there is no bonafide reason available in favour of the petitioner / accused, to allow the petition and the learned Magistrate, considering the facts and circumstances of this case properly, has rightly dismissed the petition. On the aforesaid circumstance, I am of the view that there is no scope for interference of this Court in the impugned order and accordingly, the criminal revision is liable to be dismissed.
29. In the result, this criminal revision petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. The Court below is directed to dispose the case, solely on merits, according to law, uninfluenced by the findings of this Court in this revision, within a period of two months from the date of receipt of a copy of this order, without causing further delay.
tsvn To To The Judicial Magistrate, Padmanabhapuram Kanyakumari District.