IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL REVISION PETITION No.619 of 2015 BETWEEN SRI K. SURESH, AGED ABOUT 55 YEARS, KASARAVALLI, BELLANDUR POST, BANGALORE – 560 037.
(BY SRI CHANNAVEERAYYA S.K., ADVOCATE FOR SRI VEERANNA G. TIGADI, ADVOCATE) AND THE SECRETARY, KARNATAKA CONTACTORS, SAHAKARA BANK NIYAMIT, (KCSBN), D-BLOCK, BWSSB PREMISES, CAUVERY BHAVAN, BANGALORE – 560 009.
(BY SRI SHIVAKUMAR H., ADVOCATE FOR SRI PRAKASH T. HEBBAR, ADVOCATE) …PETITIONER …RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 12.6.2015 IN C.C.NO.14458/2003 PASSED BY THE XVIII A.C.M.M., BANGALORE.
THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This revision petition is filed by the petitioner under Section 397 of Cr.P.C. being aggrieved by the order dated 12.06.2015 passed by the XVIII Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.No.14458/2003 issuing summons to the handwriting expert.
2. The petitioner is accused and respondent is the complainant before the Trial Court. The ranks of the parties before the Trial Court are retained for the sake of convenience.
3. The case of the respondent/complainant before Trial Court is that the he filed a private complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (‘N.I. Act’ for short). After taking cognizance, summons has been issued to the accused. The accused appeared before the Court and pleaded not guilty and claimed to be tried. Therefore, the complainant examined witnesses on his behalf and got marked Ex.P.2, the cheque in question, which is said to be issued by the accused. Thereafter, the accused filed an application before the Trial Court under Section 45 of the Indian Evidence Act, 1872 (‘Act’ for short) for referring the cheque in question to the handwriting expert to furnish opinion regarding genuineness of the alleged signature of the accused. The same was allowed by the Trial Court vide order dated 06.11.2013. Accordingly, the cheque was referred to Smt. C.V. Jayadevi, Handwriting and Finger Print Expert. Then the opinion was submitted and the accused being not satisfied with the report filed by the handwriting expert, filed his objections to the expert’s opinion, with a prayer to reject the same and not to examine the expert as witness and requested to re-refer the cheque to some other handwriting expert. After filing of the objections by the accused, the Trial Court passed an order on 12.06.2015 issuing summons to the expert with a direction to pay batta. The same is challenged before this Court on the ground that the Trial Court has not considered the objection filed by the accused as he did not want to examine the said witness and requested the Court to reject the opinion of the handwriting expert and to refer the same to some other expert. The same was not considered, but summons were issued to examine the expert as witness of the accused. Therefore, prayed for setting aside the same.
4. Heard learned counsel for the petitioner and learned counsel for the respondent and perused the records.
5. Learned counsel for the respondent strenuously argued and objected that the order under revision is an interlocutory order and therefore, filing of a revision under Section 397 of Cr.P.C. is barred and the same is not maintainable. In this regard, learned counsel for the respondent relied upon the judgment of the Hon’ble Apex Court in the case of State represented by Inspector of Police and others vs. N.M.T. Joy Immaculate reported in (2004) 5 SCC 729.
6. Learned counsel for the accused/petitioner contended that the summons issued by the Trial Court affects the right of the accused. Therefore, the order cannot be considered as an interlocutory order and hence, revision petition is maintainable. In support of the same, learned counsel for the petitioner relied upon the judgment of the Hon’ble Supreme Court in the case of Mohit Alias Sonu and another vs. State of Uttar Pradesh and another reported in (2013) 7 SCC 789.
7. On a perusal of the order and the order sheet of the Trial Court, it is an admitted fact that the respondent herein has filed a complaint against the accused/petitioner for the offence punishable under Section 138 of the N.I. Act. The evidence of the complainant came to be concluded. The accused disputed the signature on the cheque. Therefore, he filed an application under Section 45 of the Act, which came to be allowed and at the request of the accused, the cheque was referred to one Smt. C.V. Jayadevi, Handwriting and Finger Print Expert for opinion, who submitted her report before the Trial Court. The Trial Court called for objection on the expert’s opinion. Accordingly, the accused filed his objection disputing the opinion and requested to reject the opinion and not to examine as the witness on his behalf. It was also requested to refer the matter to some other handwriting expert for fresh opinion. Thereafter, the Trial Court issued summons to the Smt. C.V. Jayadevi, the expert who gave opinion on the direction of the Court. However, the order reads as follows;
“12/6/15 A.P.Objection filed. Heard Complainant by MNM I/S/S &wit & batta Accused by SLR Order to be paid witness Directly by 3/7.”
which means, objection to the expert’s opinion was filed and after hearing, it was directed by the Court to issue summons to the witnesses after paying batta to the witness directly. The order does not reveal as to whether the direction for paying batta was given to the accused or the complainant. However, once the handwriting expert’s opinion was disputed by the accused and the Court was requested to reject the same and to re-refer the same to some to other expert’s opinion, it is the duty of the Court to see whether the expert’s opinion is acceptable or not. Merely issuing summons to the witness and directing either the accused or the complainant to pay batta to the witness cannot be understood as the right of the accused is affected so as to challenge the same under the revision. On the other hand, the order under revision is purely an interlocutory order issuing summons only to examine the expert as a witness in order to accept the objection of the accused and to reject the opinion of the expert, if any, so as to refer the same to any other expert. Therefore, the order under revision is an interlocutory order. The order cannot culminate the trial, which affect the right of the accused. The Hon’ble Supreme Court in the case of Girish Kumar Suneja vs. Central Bureau of Investigation reported in (2017) 14 SCC 809, at paragraphs 27 and 30 has held as follows;
“27. Our conclusion on this subject is that while the appellants might have an entitlement (not a right) to file a revision petition in the High Court but that entitlement can be taken away and in any event, the High Court is under no obligation to entertain a revision petition- such a petition can be rejected at the threshold. If the High Court is inclined to accept the revision petition it can do so only against a final order or an intermediate order, namely, an order which if set aside would result in the culmination of the proceedings. As we see it, there appear to be only two such eventualities of a revisable order and in any case only one such eventuality is before us. Consequently the result of para 10 of the order passed by this Court is that the entitlement of the appellants to file a revision petition in the High Court is taken away and thereby the High Court is deprived of exercising its extraordinary discretionary power available under Section 397 Cr.P.C.”
“30. What then is the utility of Section 482 Cr.P.C? This was considered and explained in Madhu Limaye which noticed the prohibition in Section 397(2) Cr.P.C. and at the same time the expansive text of Section 482 Cr.P.C. and posed the question: In such a situation, what is the harmonious way out? This Court then proceeded to answer the question in the following manner: (SCC pp. 555-56, para 10) “10. … In such a situation, what is the harmonious way out? In our opinion, a happy solution of this problem would be to say that the bar provided in sub- section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one of the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly.””
In another judgment relied upon by the counsel for the respondent in the case of State represented by Inspector of Police and others vs. N.M. T.Joy Immaculate reported in 2004(5) SCC 729, the Hon’ble Supreme Court at paragraph 13 has held as follows;
“13. Section 167 Cr.P.C. empowers a Judicial Magistrate to authorize the detention of an accused in the custody of police. Section 209 Cr.P.C. confers power upon a Magistrate to remand an accused to custody until the case has been committed to the Court of Session and also until the conclusion of the trial. Section 309 Cr.P.C. confers power upon a court to remand an accused to custody after taking cognizance of an offence or during commencement of trial when it finds it necessary to adjourn the enquiry or trial. The order of remand has no bearing on the proceedings of the trial itself nor can it have any effect on the ultimate decision of the case. If an order of remand is found to be illegal, it cannot result in acquittal of the accused or in termination of proceedings. A remand order cannot affect the progress of the trial or its decision in any manner. Therefore, applying the test laid down in Madhu Limaye case it cannot be categorized even as an “intermediate order”. The order is, therefore, a pure and simple interlocutory order and in view of the bar created by sub-section (2) of Section 397 Cr.P.C. a revision against the said order is not maintainable. The High Court, therefore, erred in entertaining the revision against the order dated 6-11-2001 of the Metropolitan Magistrate granting police custody of the accused Joy Immaculate for one day.”
8. Learned counsel for the petitioner has relied upon the judgment of the Hon’ble Supreme Court in the case of Mohit alias sonu and another vs. State of Uttar Pradesh and another reported in (2013) 7 SCC 789, wherein it has been held as follows;
“ An order which substantially affects the rights of the accused or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order as contemplated under Section 397(2) Cr.P.C. When an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction under Section 397 or 401 of Cr.P.C, then there should be a bar in invoking the inherent jurisdiction of the High court under Section 482 Cr.P.C. in other words the inherent power of the High Court can be exercised only when there is no remedy provided in the Cr.P.C. for redressal of the grievance. It is well settled that the inherent power of the High Court can ordinarily be exercised when there is no express provision in Cr.P.C. under which an order impugned can be challenged. Therefore, when there is a specific remedy provided by way of appeal or revision, the inherent power either under Section 482 Cr.P.C. or Section 151 CPC cannot and should not be resorted to.”
In another judgment relied upon by learned counsel for the petitioner in the case of Mohanlal Shamji Soni vs. Union of India and another reported in 1991 Supp (1) SCC 271, the Hon’ble Supreme Court at paragraph 10 has held as follows;
“10. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. …”
There is no dispute in respect of the principle laid down by the Hon’ble Supreme Court. On a perusal of the order under revision, the Court, in order to verify the contention taken by the accused in the objections filed on the expert’s opinion, only issued summons and the Trial Court has not mentioned as to whether the witness is going to be examined either on the side of the accused or the complainant. Obviously, the Trial Court to satisfy itself in order to know the veracity of the handwriting expert has issued summons and before examining the said witness either as a court witness or party witness, learned counsel for the petitioner has hurriedly approached this Court by filing this revision petition. The order under revision is purely an interlocutory order and cannot be challenged under Section 397 of Cr.P.C. At this stage, learned counsel for the petitioner filed a memo not pressing the revision petition and requested the Court to treat the Criminal Revision Petitioner as Criminal Petition, which is not permissible since again this petitioner may continue to prosecute, which cause delay in adjudicating the same before the Trial Court even though it is an interlocutory order. The petitioner is at liberty to approach the Trial Court and request the Trial Court to examine the witness as a Court witness. Therefore, the memo filed by the petitioner cannot be accepted.
9. For the reasons stated above, revision petition is not maintainable and barred under Section 397 of Cr.P.C. Accordingly, the Criminal Revision Petition being devoid of merits is dismissed. The petitioner is at liberty to approach the Trial Court for examining the witness as the Court witness by filing any memo, if required.
SD/- JUDGE mv