In the case of denial of signature of the drawer of a cheque, the best witness would be the concerned Bank Manager and not a handwriting expert. The learned Addl. Sessions Judge allowed the revision solely on the ground that the accused had the right to lead the defence evidence of handwriting expert. The learned ASJ overlooked the reasoning of learned Magistrate in disallowing the application under section 243(2) Cr.P.C. and, particularly that despite specific directions of this Court, the accused was getting the proceedings delayed in filing one after another application when he himself had compared the signature of the accused on the cheque in question with her admitted signature and did not find any variance and the cheque was dishonoured not on account of variance in signatures, but 'insufficient funds'. The interference by learned ASJ in the order of MM was unwarranted and, in fact, against the orders dated 19.3.2011 and 10.8.2011 of this Court. The cheque was dishonored not on account of difference in signature but on account of insufficient funds. The bank manager also confirmed this fact and was nowhere confronted by the respondent/accused as regards her signatures on the cheque. Further, admittedly, the Magistrate had also compared the signature of the accused as appearing on the cheque with her admitted signatures as per his power under section 73 of the Evidence Act and did not find variation in the signatures. The plea regarding the cheques not bearing her signature was taken by the respondent/accused only at the stage of defence evidence.
Delhi High Court
Kanshi Ram Bansal vs Suman Malhotra on 11 April, 2012
1. This is a petition under section 482 Cr. P.C. assailing order dated 03.22.2011 of ASJ whereby the revision petition filed by the respondent /accused herein against the order dated 11.07.2011 under section 243(2) Cr. P.C. of the MM was allowed.
2. The petitioner/complainant had filed a complaint under section 138 of the Negotiable Instruments Act (for short 'the Act') in the Court of MM. In the said complaint the petitioner had led evidence and the statement of the accused/respondent under section 313 Cr. P.C. was also recorded. The case was at the stage of defence evidence of the respondent/accused. An application was filed by the accused under section 243(2) Cr. P.C. for examination of handwriting expert in order to prove that the cheque in question, which formed the basis of the said complaint, was neither signed by her nor had impression of her palm and fingers. The MM dismissed the said application vide his order
Crl. M.C. 3876 of 2011 Page 1 of 9 dated 11.07.2011 observing that the accused/respondent had earlier filed an application under section 311 Cr. P.C. read with section 45 of the Evidence Act which was dismissed vide order dated 23.04.2011 and another application under section 45 and 73 of Evidence Act seeking expert opinion which was also dismissed vide order dated 20.05.2011 with costs. He observed that issue pertaining to the examination of expert has already been dealt with in both the applications which have been dismissed and so the same issue could not be taken up again. He also observed that the present complaint was to be decided expeditiously as per the order of this Court and consequently he dismissed the said application with cost of Rs.10,000/-.
3. The respondent/accused took the matter in revision before the Court of ASJ who vide the impugned order allowed the revision petition and observed that the accused had the right to produce expert witness in her defence. Consequently, he granted one opportunity for the examination of the expert witness.
4. The complainant has assailed the impugned order on the grounds (i) that the order dated 11.07.2011 of MM was interlocutory and no revision lie against the said order and thus the ASJ erred in entertaining the revision petition; (ii) that the respondent/accused earlier filed two applications for the same purpose for examining handwriting expert for disproving her signatures on the cheque in question, and both the said applications have been dismissed vide orders dated 23.04.2011 and 20.05.2011 and so, the application under section 243(2) Cr. P.C. was not maintainable. It was submitted that the order dated 23.04.2011, whereby the application of the respondent/accused for examining the
Crl. M.C. 3876 of 2011 Page 2 of 9 handwriting expert was dismissed, had become final and the revision against the order dated 20.05.2011 was also dismissed as withdrawn; (iii) that the cheque in question was dishonoured for the reason 'insufficient funds' and not due to difference in signature of the drawer. The complainant also examined Branch Manager of the concerned bank of the drawer who identified the signatures of the respondent/accused and confirmed the same and that the cheque was dishonored for want of sufficient funds in the account and not for the reason of difference in signatures of the respondent; and (iv) that there was no necessity of examination of the handwriting expert as recorded in the order dated 23.04.2011 of the MM since the MM had himself compared the signatures of the respondent as per section 73 of the Indian Evidence Act and found the same to be that of respondent/ accused.
5. The learned counsel for the respondent/ accused relied upon the case of Mrs. Kalyani Baskar Vs. Mrs. M.S. Sampoornam, 2007 (1) Crimes 106 (SC) to contend that the accused had the right to examine handwriting expert to prove that cheque in question was not signed by her.
6. I have heard learned counsel for the petitioner, respondent and perused the records.
7. As noted above, the respondent/ accused filed one application under section 45 of Evidence Act read with section 311 Cr. P.C. for examining handwriting expert which came to be dismissed vide order dated 23.04.2011. She filed another application under sections 45 and 73 of Evidence Act which also came to be dismissed vide order dated 20.05.2011. The revision against the said order was also dismissed as Crl. M.C. 3876 of 2011 Page 3 of 9 withdrawn. Both these orders dated 23.04.2011 and 20.05.2011 were passed on the applications seeking examining the handwriting expert for the same purpose as was in the application under section 243(2) Cr.P.C. This application, in fact, was nothing but to seek review of the previous orders of 23.04.2011 and 20.05.2011. In this application under section 243(2) Cr. P.C., the respondent/accused did not disclose about the applications filed earlier or the same having been dismissed. In fact, the order under section 243(2) Cr. P.C. also being interlocutory in nature, no revision lied against the said order.
8. The case of Mrs. Kalyani Baskar (supra) though recognized the right of the accused to lead defence evidence of the handwriting expert, but that was in the situation when the accused appeared before the Magistrate and filed an application under Section 245 Cr.P.C. raising objection that the cheque in question was not signed or issued by her and that she did not owe any debt to the complainant. In the said case, the Banker had specifically stated that he did not verify the signature before returning the cheque as dishonoured. It was in these circumstances that the order of MM disallowing application under section 243 Cr.P.C. was held to be erroneous. The Hon'ble Supreme Court in this case held thus :-
"10. 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
Crl. M.C. 3876 of 2011 Page 4 of 9 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
Crl. M.C. 3876 of 2011 Page 5 of 9 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 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."
9. It may be noted that the factual matrix in the case of Kalyani Bhaskar (supra) was entirely different. In the present case, two applications filed by the respondent/accused for the same relief were earlier dismissed by the Magistrate. It is seen that in his order, the Magistrate had specifically noted that the petitioner complainant is aged 78 years; that there are directions of this Court for time bound disposal of the complaint and that the respondent/accused was adopting delaying tactics. He observed the application to be vexatious and dismissed with costs.
10. In the case of L.C. Goyal Vs. Mrs. Suresh Joshi & Ors. AIR 1999 SC 2222 the Supreme Court observed in para (8) of its judgment as under :
Crl. M.C. 3876 of 2011 Page 6 of 9 "8. The complainant alleged that when the appellant realized that the complainant has come to know that he has misappropriated a sum of Rs. 25,491, he gave a cheque for a sum of Rs. 38,000 which is Ext.C-4. The said cheque was drawn on UCO Bank and the same
was deposited in the Central Bank of India in the account of Union, viz., Siemens' Employees Union, New Delhi. But the said cheque was dishonored due to insufficient funds. The appellant denied his signature on Ext. C-4 and contended that his signature was forged by the complainant. It is in this context that it was urged before the Bar Council of India that some hand- writing expert be examined in order to find out the genuineness of the signature on Ext. C-4. As stated above, the cheque bounced not on account of the fact that the signature on Ext. C-4 was not tallying with the specimen signature of the appellant kept with the Bank, but on account of insufficient funds. Had the signature on Ext. C-4 been different, the bank would have
returned the same with the remark that the signature on Ext. C-4 was not tallying with the appellant's specimen signature kept with the bank. The memos Ext. C-6 and Ext. C-8 issued by the bank clearly show that signature of the appellant on Ext, C-4 was not objected to by the bank, but the same was returned with the remark
"insufficient fund". This circumstance shows that the signature on Ext. C-4 was that of the appellant."
Crl. M.C. 3876 of 2011 Page 7 of 9
11. In the case of denial of signature of the drawer of a cheque, the best witness would be the concerned Bank Manager and not a handwriting expert. The learned Addl. Sessions Judge allowed the revision solely on the ground that the accused had the right to lead the defence evidence of handwriting expert. The learned ASJ overlooked the reasoning of learned Magistrate in disallowing the application under section 243(2) Cr.P.C. and, particularly that despite specific directions of this Court, the accused was getting the proceedings delayed in filing one after another application when he himself had compared the signature of the accused on the cheque in question with her admitted signature and did not find any variance and the cheque was dishonoured not on account of variance in signatures, but 'insufficient funds'. The interference by learned ASJ in the order of MM was unwarranted and, in fact, against the orders dated 19.3.2011 and 10.8.2011 of this Court. The cheque was dishonored not on account of difference in signature but on account of insufficient funds. The bank manager also confirmed this fact and was nowhere confronted by the respondent/accused as regards her signatures on the cheque. Further, admittedly, the Magistrate had also compared the signature of the accused as appearing on the cheque with her admitted signatures as per his power under section 73 of the Evidence Act and did not find variation in the signatures. The plea regarding the cheques not bearing her signature was taken by the respondent/accused only at the stage of defence evidence.
12. It is also noted that this Court on 19.03.2011 had directed the MM to dispose of the case expeditiously and vide order dated 10.08.2011 a
Crl. M.C. 3876 of 2011 Page 8 of 9 specific direction was given for disposal of the case within a period of 8 months.
13. From the above discussion I am of the view that since there was no infirmity or illegality in the order of the MM dated 11.07.2011, the learned ASJ erred in entertaining the revision petition and setting aside the said order of the MM. In view of all this
the impugned order is set aside. The petition is disposed of accordingly.
M.L. MEHTA, J.
APRIL 11, 2012
No comments:
Post a Comment