Judgment:
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
04. 11/2013 CORAM THE HON'BLE MR.JUSTICE M.VENUGOPAL CRL.R.C.(MD) No.694 of 2013 and M.P.(MD) No.1 and 2 of 2013 M.S.Saravanan ..Petitioner/Petitioner/ Accused Vs. S.M.Jeyaraj ...Respondent/Respondent Complainant Prayer Criminal revision petition filed under Sections 397 and 401 of Criminal Procedure Code to call for the records in Crl.M.P.No.5149 of 2013 in C.C.No.721 of 2012 on the file of the learned Judicial Magistrate, Fast Track Court (Magisterial Level), Thoothukudi, Thoothukudi District and set aside the order dated 06.09.2013 and pass such further or other orders as this Court may deem fit and proper in the interest of case. !For Petitioner ... Mr.A.Thiruvadikumar ^For Respondent ... Notice served(No appearance) :ORDER
The Petitioner/Accused has preferred the instant Criminal Revision Case as against the order dated 06.09.2013 in Crl.M.P.No.5149 of 2013 in C.C.No.721 of 2012 passed by the Learned Judicial Magistrate, Fast Track Court, (Magisterial Level), Tuticorin, Tuticorin District. 2.Earlier in Crl.M.P.No.5149 of 2013 in C.C.No.721 of 2012 filed by the Petitioner/Accused before the trial court it is averred that he has not borrowed any loan from the Respondent/ Complainant and further stated that he has not executed any pronotes. Further, it is specifically mentioned that the Complainant (Respondent) forged the signature of the accused and filed the case and also marked documents Ex.A.5 to A8. As a matter of fact, the petitioner has sought for verifying the signatures in Ex.A5 to A8 documents by the Hand Writing and Finger Print Experts along with the specimen signatures. Therefore, the petitioner filed a petition seeking permission of the trial court to send the petition mentioned documents to the Hand Writing Expert and to compare his signatures found in the said pronotes etc.
3. The Respondent/Complainant filed a counter to Crl.M.P.No.5149 of 2013 stating that the signature in Ex.A.5 to A8 documents could not be compared with subsequent signatures obtained in court. Further, it is stated that the Petitioner/Accused has not denied the signature in the cheque issued and further that the petition has been filed by the Petitioner/Accused only to prolong and protract the proceedings.
4. The Learned Judicial Magistrate, Fast Track Court, (Magisterial Level), Tuticorin, Tuticorin District, while passing the impugned order dated 06.09.2013 in Crl.M.P.No.5149 of 2013 in C.C.No.721 of 2012 (filed by the Petitioner/Accused) has observed in paragraph No.9 to the effect that ".Coming to the facts of th epresent case this case was taken on file on 26.11.2012. The evidence for the prosecution completed on 14.06.2013. After that the accuse was questioned u/s 313 of Cr.P.C and the case was posted for defence. The case was periodically adjourned, at the request of the accused. Finally the case was posted on 18.06.2013, for of defence witnesses. More than a month time was given, 8 adjournments were granted the accused has not filed any witness list nor examined any other witness other than the cross examination of the P.W.1. Then the case is posted for Arguments, and 4 times adjournments were granted, this petitioner/accused moved with this application. Hence, it is clearly shows from the attitude of the accused to protract the proceedings, he moved this application. And further even at the time of the questioning by the court u/s 313 of Cr.P.C., the accused has not denied the signature in the pronote. And also the accused stated in his application that send the signature of the accused which was obtained in the year 2009 with the admitted signatures to be obtained in the court in the year 2013. It is very specific that comparison of the signatures shall be made with the signatures obtained in the same time period. And also there is no purpose in the petition, that the petitioner is ready to give the specimen signature of him in the year 4 years back". and resultantly dismissed the petition. 5.Assailing the correctness of the order of dismissal dated 06.09.2013 in Crl.M.P.No5149 of 2013 in C.C.NO.721 of 2012, the Learned Counsel for the Petitioner/Accused submits that the impugned order of the trial court is ex- facie illegal, arbitrary and against the well settled legal principles.
6. According to the Learned Counsel for the Petitioner the trial court has failed to appreciate the ingredients of Section 243(2) of Criminal Procedure Code. It is the contention of the Learned Counsel for the Petitioner that the main case was taken on file as C.C.NO.721 of 2012 by the Learned Magistrate on 26.11.2012 and on behalf of the prosecution, the evidence was closed on 14.06.2013 and subsequently on 19.07.2013 Section 313 Cr.P.C proceedings were held. Further the petitioner has projected Crl.M.P.No.5149 of 2013 in C.C.No.721 of 2012 on the file of the trial court under Section 243(2) of Cr.P.C seeking for passing an order to send the petition mentioned documents to Hand Writing and Finger Printing Expert and to compare the signature of the Petitioner/Accused in Ex.A.5 to A8 pronotes dated 17.12.2009, 20.01.2010, 13.02.2010, 28,03,2010 respectively. On behalf of the Respondent/Complainant a detailed counter was filed mentioning that the Revision Petitioner/Accused had not disputed his signature in the cheque issued by the Respondent/Complainant and therefore, the comparison of signature in Ex.P.5 to P.8 is immaterial and cannot have any baring on the case.
7. At this juncture, the Learned Counsel for the Petitioner/Accused strenuously contends that the chief examination of P.W.1/Respondent had taken place on 08.04.2013 and his examination was completed on 19.09.2013. Further, any omission/failure to dispute the Ex.P.5 to P.8 at the time of question under Section 313 Cr.P.C cannot be a ground to discard the Crl.M.P.No.51349 of 2013 in C.C.No.721 of 2012 on the file of the trial court.
8. The gist of the submission of the Learned Counsel for the Petitioner is that the Petitioner/Accused to disprove the version of the Respondent/Complainant ought to be provided with enough/adequate opportunity to ventilate his grievance and indeed no hardship or prejudice would be caused to the Respondent/Complainant in the event of the trial court allowing Cr.M.P.No.5149 of 2013. 9.Lastly, it is projected on behalf of the Petitioner/Accused that Cr.M.P.No.5149 of 2013 in C.C.No.721 of 2012 filed by the Revision Petitioner/Accused cannot be termed as a vexatious or frivolous one namely with a view to procrastinate the proceedings inasmuch as the said petition was filed in time. That part, it is also the stand of the Petitioner/Accused that it is the specific case of the Respondent/ Complainant that he borrowed on 17.12.2009, 20.01.2010, 13.02.2010, 28.03.2010 a sum of Rs.2 lakhs on each occasion and executed pronotes in which the dates were not found. 10.The Learned Counsel seeks in aid of the decision of the Hon'ble Supreme Court in 2007 (1) SCC (Cri) page at 577 in the case of Kalyani Baskar Vs.M.S.Sampoornam at special page 580 and 581 where it is laid down as follows:
12. Section 243(2) is clear that a Magistrate holding an inquiry under 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 handwriting 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 handwriting 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 the 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 of 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 handwriting 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.
11. He also invites the attention of this Court to the decision of the Hon'ble Supreme Court reported in 2008(2) SCC (Cri) at page No.677 T.Nagappa V. Y.R.Muralidhar at Special page No.680 and 681 wherein in paragraph Nos.9 and 11 it is observed thus:
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 knows 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 bring 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 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) The issue now almost stands concluded by a decision of this Court in Kalylani Baskar Vs. M.S.Sampoornam (2007 (2) SCC2582007 (1) SCC577 (In which one of us L.S.PANTA, J.
was a member) wherein it is held as follows:
12. Section 243(2) is clear that a Magistrate holding an inquiry under 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 documet for enabling the same to be compared by a handwriting 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 handwriting 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 the courts should be jealous in seeing that there is no breach of them". 12.The object of Sections 138 and 139 of Negotiable Instruments Act is that the cheque issued for payment of admitted liability, the drawer must honour his liability. Under Negotiable Instruments Act, 1881, the early burden of proof is on the complainant, which he has to discharge in case of dishonour of cheque. He must establish that the cheque was given to him by the accused in discharge of legally enforceable debt/liability. The position of law is that once execution of the pronote is admitted, the presumption under Section 118 of Negotiable Instruments Act will arise that it is supported by consideration, although such a presumption is a rebuttal one. In short, the presumption under Sections 138 and 139 of Negotiable Instruments Act can be raised in a given case.
13. A reading of the ingredients of Section 243 of Cr.P.C categorically indicates that soon after the evidence of prosecution is over, the accused shall be enter upon his defence. Also that, if the accused approaches the Learned Magistrate to issue process for calling any witness for examination or cross examination for the production of any document etc., then it is open to the Learned Judicial Magistrate to issue process subject to the condition that if the Magistrate finds that such application is made for the purpose of delay or vexatious one or with a view to defeat ends of justice.
14. It is to be relevantly pointed out by this Court that any omission/failure to give effect to the ingredients of Section 243 of Cr.P.C would be a illegality and would vitiate the entire proceedings. If the accused desires a expert's evidence in his defence, he can make it available and may also, if need be examined the concerned expert. Even in the absence of a specific provision in Chapter XIX of Cr.P.C he can make a request to the concerned court with the document, whose genuineness he disputes may be sent for a expert's opinion. This is implicit in Sub Section(2) of Section 243 of Cr.P.C., in the considered opinion of this Court. It is valuable right given to an accused is not entirely in the area of investigation and would admit of no restriction, except where the Magistrate is satisfied for reasons to be recorded that the intended excercise is clearly for the purpose of delay or for defeating the ends of justice as the case may be.
15. A reading of paragraph NO.8 of the order dated 06.09.2013 in Crl.M.P.No.5149 of 2013 passed by the trial court points out that the Petitioner/Accused in spite of 8 adjournments being granted to him has not filed any witness list nor examined any other witness other than the cross examination of the P.W.1. Further it appears that the main case was posted for arguments and 4 times adjournments were granted etc.
16. As far as the present case is concerned, this Court is of the considered view that what kind of evidence is to be adduced in a given case it is within the domain of the Petitioner/Accused and it is for him to establish his case in the manner known to law and in accordance with law. It is true that the learned Judicial Magistrate cannot permit a party to unnecessarily prolong the conduct of the trial of a given case or summons witnesses whose evidence may not have any baring on the case at all. Generally speaking, the Petitioner/Accused ought to be provided with the opportunity for seeking the assistance of the court of law in regard to the summoning of witnesses and the like nature. To put it succinctly, it is primordial duty of a Learned Magistrate to find out whether the Petition/Application filed by the Petitioner/Accused is in tune with Section 243(2) of Cr.P.C namely whether the application is bona fide and also it is not meant to prolong or protract the pending proceedings in a indefinite manner. Notwithstanding the fact that Section 118(a) or Section 139 of Negotiable Instruments Act , 1881 speaks of presumption. An opportunity to counter the said presumption in an adversial system of criminal jurisprudence ought to be provided to the Petitioner/Accused for letting in oral and documentary evidence as the case may be depending upon the facts and circumstances of a given case floating on the surface.
17. In short, the nature of evidence what should be ought not to be left within the ambit of a court of law after all the Petitioner/Accused is the well the best person and gauge as to how he can establish his case by projecting necessary defence.
18. At this stage, the Learned Counsel for the Petitioner/Accused refers to the evidence of P.W.1 (in cross examination) to the effect that he has no objection for seeking the pronotes and cheque signatures to a expert and to obtain a Report.
19. One cannot brush aside the important fact that as seen from paragraph No.9 of the impugned order in Crl.M.P.5149 of 2013 in C.C NO.721 of 2012 passed by the trial court some opportunities were given to the Petitioner/ Accused this Court opines that the right lead the evidence and to let in what kind of evidence is purely within the domain and discretion of the Petitioner/Accused and for proving his version of the case or his stand. Afuller and adequate opportunity must be provided so as to defend the cause of justice. If Crl.M.P. 5149 of 2013 in C.C.NO.721 of 2012 Is allowed, the highest thing that would happen is an opportunity would be provided to the Petitioner/Accused to project his version or proving of his case in the best possible manner as he wishes/desires.
20. Although the Petitioner/Accused has not denied his signature in the cheque dated 03.10.2012 and in view of the fact that the Petitioner/Accused must be provided with an opportunity to defend himself and in this regard if he so desires/advised can also adduce evidence, this Court without going into the merits of the case comes to an irresistible conclusion that the impugned order in Crl.M.P.No.5149 of 2013 in C.C.No.721 of 2012 passed by the Learned Judicial Magistrate, Fast Track Court (Magisterial Level), Thoothukudi, Thoothukudi District is not a correct and valid one. As such this Court interferes with the said order dated 06.09.2013 and sets aside the same in furtherance of substantial cause of justice. Resultantly, the Criminal Revision succeeds.
21. In the result, the Criminal Revision Petition is allowed. The order passed by the Learned Judicial Magistrate, Fast Track Court (Magisterial Level), Thoothukudi, Thoothukudi District in Crl.M.P.No.5149 of 2013 in C.C.No.721 of 2012 is hereby set aide by this Court for the reasons assigned in this Revision. The Learned Judicial Magistrate, Fast Track Court (Magisterial Level), Thoothukudi, Thoothukudi District, is directed to restore Crl.M.P.No.5149 of 2013 in C.C.No.721 of 2012 to her file, soon after the receipt of this order. In view of the fact that main case in C.C.No.721 of 2012 is pending at part heard stage, this Court directs the Learned Judicial Magistrate, Fast Track Court (Magisterial Level), Thoothukudi, Thoothukudi District to dispose of Crl.M.P.NO.5149 of 2013 in C.C.No.721 of 2012 (after restoration to file) within a period of four weeks from the date of receipt of copy of this order, by providing enough/adequate opportunities to both sides and to report compliance to this Court without fail. Consequently, connected M.P.s are closed. ses To, 1.The Judicial Magistrate, Fast Track Court (Magisterial Level), Thoothukudi, Thoothukudi District 2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.