IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.1367 OF 2010 BETWEEN:
M/s Sangam Corporation (Finance and Investments) A Registered Partnership Firm No.67, R.K.Mutt Road, Ulsoor, Bengaluru – 560 008.
Represented by its Partner- Mr.K.S.Chinnaswamy.
…Appellant (By Sri.K.S.Periyaswamy, Advocate) AND:
Mr.R.Lokanath, S/o Rama Anjaneyappa, Age : Major, No.445, 3rd ‘A’ Main Road, Hosakerehalli, Girinagar, Bengaluru – 560 050.
Also at:
1. Shashank Enterprises No.17, II Floor, 5th Cross, Gandhinagar, Bengaluru – 560 009.
2. No.15A, 3rd Cross, Malleshwaram, Bengaluru – 560 003.
(By Sri.P.D.Subramanya, Advocate) …Respondent This Criminal Appeal is filed under Section 378 (4) of Cr.P.C., praying to set aside the order dated 11.10.10 passed by the Addl.S.J and P.O. FTC-III, Mayo Hall Unit, Bengaluru in Crl.A.25044/10 and confirm the order dated 10.3.10 passed by the XV Addl. Small Causes Judge & XXIII ACMM, Mayo Hall Unit, Bengaluru in C.C.No.31881/06 - convicting the respondent/accused for the offence punishable under Section 138 of N.I.Act.
This Criminal Appeal coming on for Hearing, this day, the Court delivered the following:
JUDGMENT In the complaint filed by the present appellant under Section 200 of Code of Criminal Procedure, against the present respondent, for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as ‘N.I.Act’), the learned XV Additional Small Causes Judge and 23rd Additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru (hereinafter for brevity referred to as `trial Court’), in C.C.No.31881/2006 pronounced the judgment of conviction, convicting the present respondent/accused on 10.03.2010. Against the same, the present respondent, as an accused, preferred Criminal Appeal No.25044/2010, before the learned Additional Sessions Judge and P.O. FTC-III, Mayo Hall Unit, Bengaluru (hereinafter for brevity referred to as `lower Appellate Court’), which by its impugned judgment dated 11.10.2010 allowed the appeal and set aside the judgment of conviction passed by the trial Court and remanded the matter back to lower Court with a direction to send the alleged disputed documents to a private handwriting expert and to proceed in the matter in accordance with law. It is challenging the judgment passed by the lower Appellate Court, the appellant/complainant has preferred this appeal.
2. The summary of the case of the complainant in the trial Court is that the complainant is a registered partnership firm carrying on business in finance and investment. The accused borrowed a sum of `4 lakhs from it on 20.04.2005 and executed a promissory note agreeing to repay the aforesaid loan amount with interest at the rate of 16% per annum. Subsequently, towards dischargal of the loan amount together with interest accrued thereupon, the accused issued a cheque bearing No.578855 dated 07.09.2005 drawn on Vijaya Bank, South End Road Branch, Bengaluru in favour of the complainant for a sum of `4,21,000/-. The complainant presented the said cheque for encashment through its banker. However, the said cheque returned dishonoured with an endorsement ‘insufficient funds’. Thereafter, the complainant got issued a legal notice to the accused calling upon him to pay the cheque amount.
However, accused failed to pay the cheque amount, which constrained the complainant to initiate criminal action against the accused/respondent for the offence punishable under Section 138 of N.I Act.
3. To prove its case, the complainant firm got examined its partner as PW-1 and got marked the documents from Exs.P-1 to P-22. From the accused side, the accused got himself examined as DW-1 and no documents were marked. After hearing both sides, the trial Court by its impugned judgment dated 10.03.2010, convicted the accused for the alleged offence and sentenced him accordingly. Aggrieved by the said judgment of conviction, the accused preferred an appeal before the lower Appellate Court in Crl.A.No.25044/2010, which Court by its judgment dated 11.10.2010 remanded the matter to the trial Court with a direction get the documents Exs.P16, P-17 and P-8 sent to any other private handwriting expert at the cost of the accused and to proceed in accordance with law, after receiving the opinion of handwriting expert and also by providing opportunity to both parties to lead further evidence, if any on the aspect. Challenging the said judgment of lower Appellate Court, the appellant/complainant has preferred this appeal.
4. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
5. The learned Counsel for the appellant/ complainant in his arguments submitted that by allowing the application filed by the accused under Section 45 of the Indian Evidence Act, 1872 (hereinafter for brevity referred to as ‘Evidence Act’), though documents were referred to Forensic Science Laboratory, but, the same returned unexamined for the administrative reasons.
However, accused did not take any further steps to ensure that those documents are referred to any other expert. The lower appellate Court has committed an error by expecting that the trial Court ought to have sent those documents for a private handwriting expert even in the absence of any request in that regard by the accused. He further submitted that even according to the accused, his signature on any of the documents including the loan application is not disputed. The same has come in the evidence of PW-1, as well the application filed by the complainant under Section 45 of the Evidence Act, which application also came to be rejected.
6. The respondent/accused was represented by his counsel. However, this Court by its order dated 19.02.2019, observing that the said learned counsel for respondent had remained absent on several dates of hearing, appointed learned counsel Sri.P.D.Subramanya from the panel of High Court Legal Services Committee, Bengaluru, as the counsel for the respondent. As such, the said panel Advocate is appearing for the respondent.
7. Learned panel Advocate for the respondent in his arguments submitted that no opportunity was given to the accused to put forth his case. As such, the lower Appellate Court has directed the trial Court to refer the disputed documents to private handwriting expert on the alternative, he also submitted that lower Appellate Court has not decided the matter on its merits but has remanded the matter on a short observation of referring the documents to handwriting expert. In such an event, the matter is required to be decided on its merits by the lower Appellate Court.
8. The complainant as PW-1 in his evidence has reiterated the contention taken up by him in his complaint. He has specifically stated that accused has availed loan of `4 lakhs from the complainant on 20.04.2005, in which regard, he had executed a demand promissory note towards the repayment of the said loan amount along with accrued interest thereupon. The cheque in question which is for a sum of `4,21,000/- was given to it by accused on 07.09.2005.
9. The accused in his defence as put forth in the cross-examination of PW-1, as well in his evidence as DW-1 has denied the existence of loan transaction as alleged by the complainant. On the other hand, he has taken a contention that the cheque in question was issued in its blank version in the year 1999 to one Sri.Dhivakar, who is a partner of the complainant firm as security for loan for a sum of `50,000/- availed by him.
However, the said cheque has been misused by the complainant firm. In the process, the accused also had denied of he making any application for loan with the complainant firm. Thereafter, the complainant firm has produced Exs.P-16 and P-17, which are said to be loan application and receipt filed by the accused. The accused disputed signatures alleged to be his signature on those two documents. As such, he made an application under Section 45 of the Evidence Act in the trial Court seeking referring those two documents to Forensic Science Laboratory for expert’s opinion. The trial Court record go to show that by order dated 22.07.2009, the trial Court allowed the said application and the accused/applicant was directed to refer to Exs.P-16 and P-17 to Forensic Science Laboratory. However, the Forensic Science Laboratory returned those documents without examination with its letter stating that the Additional Director General of Police, Crime and Technical Services, Bengaluru has approached the Registrar General of High Court of Karnataka, Bengaluru to issue appropriate instructions to the Sub-ordinate Courts to temporarily defer referring of documents in Civil cases to Forensic Science Laboratory, Bengaluru, until the pendency is reduced to minimal level. The trial Court has noted the contents of the said submission made by Forensic Science Laboratory in writing in its order sheet dated 14.10.2009. Thus, Exs.P-16 and P-17 have been returned back without expert’s opinion.
10. Admittedly, after return of Exs.P-16 and P-17, the accused has not taken any steps to seek reference of those two documents to any other private handwriting expert for expert’s opinion. On the other hand, records reveal that the complainant himself made one such application under Section 45 of the Evidence Act, requesting the trial Court to refer the signature of accused found on demand promissory note, plea recorded by the trial Court, vakalath, affidavit along with cheque and the application for proper and effective finding by the handwriting expert. The said application came to be dismissed on merits by the order of the trial Court dated 23.09.2009. The reasons given for dismissal of the said application was that in the objections filed by accused to the application, he has specifically contended that the accused has never denied or disputed the signatures found on the said documents till date. Thus, when the other side has not at all denied the signatures found on those documents, the question of referring those documents under Section 45 of the Evidence Act, does not arise. The said finding of the trial Court has reached its finality.
11. In addition to the above, the trial Court in its judgment has after elaborate discussion of the matter and also referring to a judgment of this Court in the case of M/s.Sudhir Shrikant Mirje and Ors. Vs. Krishnaji Marutirao Shendure reported in ILR 1998 Karnataka short notes 92, has exercised its power under Section 73 of Evidence Act in comparing the signature on Exs.P-6, P-7 and P-16 with the admitted signature of the accused and has opined in favour of the complainant.
12. The lower Appellate Court in its judgment has held that said act of the trial Court in exercise of power under Section 73 of Evidence Act was uncalled for. The reason given by the lower Appellate Court is only that once Exs.P-16 and P-17 were returned by the Forensic Science Laboratory, Bengaluru, the trial Court ought to have referred the documents for any other private handwriting expert for scientific investigation. The said finding of the lower Appellate Court, I am not inclined to accept for the reason that the direction given by the trial Court in its order dated 22.07.2009 passed on I.A filed by the accused under Section 45 of Evidence Act was a direction for the accused to refer the documents at Exs.P-16 and P-17 to the Forensic Science Laboratory, Bengaluru for its opinion. Thus, direction was not to any other except to the accused himself. When the accused could not get the expert’s opinion through Forensic Science Laboratory may be for administrative reasons of Forensic Science Laboratory, but it was required of the accused to request the trial Court for further reference of the matter for expert’s opinion to any other expert of his choice and acceptable by the trial Court. The said act has not been done by the accused.
On the other hand, the complainant himself has made a similar application under Section 45 of the Evidence Act, which was objected to by the accused. In the objections, he has contended that the signature on those documents ought to be referred to a handwriting expert was not disputed by him. Incidentally application of the complainant under Section 45 of the Evidence Act inter alia also sought reference of the loan application i.e., Ex.P-16 to expert’s opinion. However, the accused himself has stated that the signature therein was not disputed by him. In addition to those, it also can be noticed that the very same accused in cross-examination dated 05.06.2009 of PW-1 - the complainant, has made a suggestion that two months prior to sanction of the loan, accused had made an application for loan. The said suggestion was admitted as true by the complainant (PW-1). Thus, the accused himself has admitted that the loan application at Ex.P-16 was made by him two months prior to the sanctioning of loan. In such circumstance, the referring of Ex.P-16 to any expert does not arise. As such, when accused himself has not disputed the signature on various documents as stated by him in his objections to the application filed by the complainant under Section 45 of the Evidence Act in the trial Court and also further shown that loan application was made by him by making a suggestion to PW-1 in his cross-examination, the lower Appellate Court without noticing these aspects has in a hurried manner held that the trial Court had a duty to refer the document to private handwriting expert. Since the said finding of the lower Appellate Court is erroneous, the same deserves to be set-aside. At the same time, since the lower Appellate Court has not decided the appeal on its merits but has only remanded the matter to the trial Court with a direction to refer the disputed document to handwriting expert, now the matter requires to be remanded to the lower Appellate Court for deciding the appeal on its merits.
13. Accordingly, I proceed to pass the following order:
ORDER The Appeal is allowed in part. The judgment passed by the learned Additional Sessions Judge and P.O. FTC-III, Mayo Hall Unit, Bengaluru in Criminal Appeal No.25044/2010 dated 11.10.2010 is set aside and the matter is remanded to the said lower Appellate Court with a direction to dispose of the matter afresh in accordance with law in the light of the observations made above.
Considering the fact that the criminal case filed in the trial Court was of the year 2006, as such, one of the old matter, the lower Appellate Court is requested to dispose of the appeal on its merits at the earliest. To enable it to dispose of the matter, both the parties are hereby directed to appear before the lower Appellate Court without awaiting any fresh notice or summons from it on 25.03.2019 at 11.00 a.m. and participate in further proceedings.
The Registry is directed to transmit a copy of this judgment to the lower Appellate Court forthwith along with lower Court records.
The Registry is also directed to transmit a copy of this judgment to the respondent herein/accused immediately.
Considering the effort put by the learned counsel for the respondent from the panel of High Court Legal Services Committee, Bengaluru, it is recommended to the Committee to consider the remuneration/ honorarium payable to the learned counsel for the respondent at `4,000/-.
Sd/- JUDGE dn/-