2013 ALL MR (Cri) JOURNAL 89
(MADHYA PRADESH HIGH COURT)
R.C. MISHRA, J.
Ram Sewak Vs. Narayan Singh
M. Cr. C. No. 3611 of 2011
10th July, 2012
Petitioner Counsel: Shri RAJESH PATEL
Respondent Counsel: Shri PUSHPENDRA DUBEY
Negotiable Instruments Act (1881) S.138 - Evidence of handwriting expert - Necessity - Applicant accused sought expert evidence on the agreements, receipts to prove that cheque in question was issued by way of security and not for presentation - Also to prove that entire amount as per agreement was paid but the complainant denied it - Held, declination to send the relevant documents to handwriting expert would amount to depriving accused of opportunity to rebut the presumption of legally recoverable debt - Agreement and receipts directed to be examined by experts at the cost of accused.
Cases Cited:
G. Someshwar Rao Vs. Samineni Nageshwar Rao, 2009 ALL MR (Cri) 2815 (S.C.) =(2009) 14 SCC 677 [Para 9]
T. Nagappa Vs. Y.R. Muralidhar, 2008 ALL MR (Cri) 1945 (S.C.) =(2008) 5 SCC 633 [Para 9]
Rangappa Vs. Sri Mohan, 2010 ALL SCR 1349 =(2010) 11 SCC 441 [Para 10]
Mrs. Kalyani Baskar Vs. Mrs. Sampoornam, 2007 ALL MR (Cri) 820 (S.C.)=(2007) 2 SCC 258 [Para 11]
JUDGMENT
2. This is a petition, under Section 482 of the Code of Criminal Procedure (for short 'the Code').
3. The petitioner is aggrieved by rejection of his application, under Sections 45 and 47 read with 73 of the Evidence Act, for subjecting the documents in the form of agreement dated 2.12.06 and receipt dated 2.11.08, to examination by an Handwriting Expert.
4. Corresponding trial is pending as Criminal Case No.3568/09 before Shri Sanjay Verma, JMFC, Bhopal. In that case, cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 has been taken upon a complaint made by the respondent.
5. Vide order-dated 4.2.11, the petitioner's application was rejected for the following reasons -
(i) An earlier application for the same relief had already been rejected on 12.11.2009 without granting liberty to him to revive the prayer at a later stage and the order, remaining unchallenged, had already attained finality.
(ii) It was made for the purpose of delay only.
6. The order dated 4.2.11 (supra) has been affirmed by way of the order-dated 16.3.11 passed by First Additional Judge to the Court of II ASJ, Bhopal, in Cri. R. No.128/11.
7. At the outset, it may be observed that the scope of interference, under Section 482 of the Code, with a revisional order is limited in view of the rider placed by sub- Section (3) of Section 397 of the Code. Accordingly, this Court may correct any mistake committed by the revisional Court only where, on examination of the record, it finds that there is grave miscarriage of justice or abuse of the process of the Court or the required statutory procedure has not been complied with or there is failure of justice. The question, therefore, is as to whether such a case is made out ?
8. According to the petitioner, the agreement clearly indicated that the cheque in question was (a) issued by way of security & not for presentation and (b) to be returned upon payment of the amount together with interest whereas the receipt contained acknowledgment that the entire amount payable in terms of the agreement was paid but, in his cross-examination, the complainant had denied the signatures on both the documents.
9. In view of dismissal of the previous application for the same purpose, the Magistrate did not commit any error of jurisdiction in rejecting the successive application. However, an accused is certainly entitled to fair trial, which is part of his fundamental right as guaranteed under Article 21 of the Constitution of India (G. Someshwar Rao v. Samineni Nageshwar Rao (2009) 14 SCC 677 : [2009 ALL MR (Cri) 2815 (S.C.)] referred to). The only caution required to be administered is that the accused should not be allowed to protract the trial by bringing on record an irrelevant evidence. (See. T. Nagappa v. Y.R. Muralidhar (2008) 5 SCC 633 : [2008 ALL MR (Cri) 1945 (S.C.)]).
10. The offence is a strict liability offence, which excludes the defence other than permissible as the conditions set out in Section 138 of the Act. Moreover, Section 139 of the Act creates a presumption, in favour of the holder of the dishonoured cheque that it was issued in discharge of a 'legally recoverable debt' or 'liability' (Rangappa v. Sri Mohan (2010) 11 SCC 441 : [2010 ALL SCR 1349] referred to). Further, as observed in T. Nagappa's case (above), Section 20 of the Act confers only a prima facie right upon the holder of the negotiable instrument and the same is subject to the right of the accused to defend his case.
11. In the light of these facts and circumstances of the case, declination to send the documents for examination and opinion of the handwriting expert, would amount to depriving the accused of the opportunity of rebutting the presumption (Mrs. Kalyani Baskar v. Mrs. Sampoornam (2007) 2 SCC 258 : [2007 ALL MR (Cri) 820 (S.C.)] relied on). Thus, interference under the inherent powers is warranted in the interests of justice.
12. The question posed above is, therefore, answered in the affirmative.
13. In the result, the petition stands allowed and the impugned orders are hereby set-aside. Instead, it is directed that the trial Magistrate shall afford a reasonable opportunity to the petitioner, subject to payment of Rs.1000/- as costs to the respondent, to have the agreement and the receipt examined by the Expert.