Ajimon O. Chacko v. Mary Geevarghese and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 Crl.MC.No. 3127 of 2007() ------------------------AGAINST THE ORDER IN CMP 2908/07 IN CC.256/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... PETITIONER(S): ACCUSED: ----------------------- AJIMON O.CHACKO, KAYYALETHU VEEDU, NEDUNGADAPPALLY P.O.,MALLAPPALLY BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR SRI.T.P.PRADEEP RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------- 1. MARY GEEVARGHESE, PUNJONI GARDENS, THITTAMEL, CHENGANNUR. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.HARIDAS FOR R1 R2 BY P.P.SRI.PUZHAKKARA MOHAMMED THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## ORDER THERE IS NO REPRESENTATION FOR PETITIONER. HENCE, THIS PETITION IS DISMISSED FOR NON-PROSECUTION. 8.3.2010 SD/-K.HEMA, JUDGE /TRUE COPY/ P.S.TO JUDGE ## **C.T. RAVIKUMAR, J** **- - - - - - - - - - - - -- - - - - - - - - - - - - - - - Crl.M.C No.3127 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of July, 2013** ## **O R D E R** The petitioner is the sole accused in CC No. 256/06 on the files of the Court of the Judicial First Class Magistrate I, Chengannur. The dilation against him is one of commission of offence punishable under Section 138 of Negotiable Instruments Act. It is alleged that he had executed and issued a cheque dated 9.11.2005 to discharge a legally enforceable debt owing to the complainant to the tune of Rs.5,00,000/and that on its presentation it was dishonoured on the ground of insufficient funds in the account of the petitioner herein. The 1[st] respondent thereupon, caused issuance of a notice intimating the factum of dishonour of the cheque in question and demanding the amount covered by the cheque. It was returned unclaimed. After complying with the mandatory formalities the petitioner was made to stand the trial and after the closure of the evidence of the complainant/the first respondent, the petitioner herein was questioned under Section 313 of the Code of Criminal Crl.M.C No.3127/2007. : 2 : Procedure. The petitioner had additionally filed a statement under Section 313 of the Code of Criminal Procedure that the cheque in question viz., cheque bearing No. 560955 was drawn on ICICI Branch on 9.11.2003 and the complainant/the first respondent herein had manipulated and corrected its date as 9.11.2005. On 18.8.2007 the petitioner filed CMP NO.2908 of 2007 viz., Annexure B under Section 45 of the Indian Evidence Act, 1872 with the prayer to send the cheque in question to Forensic Science Laboratory, Thiruvananthapuram to ascertain whether any correction has been made in it with respect to the date. Annexure B application was rejected by the learned Magistrate as per Annexure C order dated 25.9.2007. This miscellaneous case has been filed against the said order. 2. The learned Magistrate took note of the fact that the very case of the complainant is that the accused had brought a cheque dated 9.11.2005 to the residence of the complainant and then signed and handed it over to him for discharging a legally enforceable debt to the tune of Rs.5,00,000/- owing to the complainant and therefore, even if it is found that there Crl.M.C No.3127/2007. : 3 : had been any correction in the date, as contended by the petitioner herein, it could not be attributed to the complainant. For a proper understanding of the reasoning it is only appropriate to extract the further relevant portion from the order and it reads thus:- “Therefore, even if it is found that there had been any corrections in the date which the above cheque was bearing,it cannot be attributed to the complainant. By all counts of probability the accursed might have brought such a cheque with a corrected date and handed over the same to the complainant. That being so, a finding as to whether there had been a correction in the date in the impugned cheque, is having little relevance in the facts and circumstances of this case. It is also to be remembered that the accused had not sent a reply notice to the complainant indicating this aspect after the receipt of statutory notice from complainant. If the accused had a genuine case in this regard he could have very well raised that contention at the earliest opportunity,that is immediately after the receipt of statutory notice from complainant. Having failed to do so, the present request exhorted in this application cannot ” be given any credence. (emphasis added) 3. It is thus obvious that the learned Magistrate held that by all counts of probability the accused might have brought the said cheque with a corrected date and handed over it to the complainant. What was the basis for arriving at Crl.M.C No.3127/2007. : 4 : such a conclusion in the nature of a presentiment? Merely because such a case is propounded by the complainant and solely because the revision petitioner/accused failed to reply to the statutory notice whether Annexure B application carrying the prayer to send the cheque in question for expert opinion to ascertain correction if any was made with respect to the date of the said cheque, could have been held as irrelevant? The learned Magistrate further held that if the accused had a genuine case, he would have definitely raise such a contention at the earliest opportunity, that is, immediately after the receipt of statutory notice from the complainant. In ground (d) of this miscellaneous case the petitioner raised the contention that the statutory notice was not received by him and at the relevant point of time he was working at Bangtalore and it was in the said circumstances that the notice was returned 'unclaimed' and that it was in the said circumstances that he was incapacitated to give a reply to the statutory notice. He was virtually unaware of the issuance of notice, it is further alleged. I do not think it necessary and proper to go into those questions at this stage in this Crl.M.C No.3127/2007. : 5 : proceedings. I have adverted to the same only to note that the specific case of the petitioner is that he had not actually received the notice. Evidently, the notice was returned unclaimed. Whatever be the reason therefor, the short question to be decided in this case is whether the twin reasons as referred above are sufficient to deny or deprive the invaluable right available to an accused to adduce the evidence in terms of Sub-Section 2 of Section 243 of the Code of Criminal Procedure 1973. True that the petitioner has filed Annexure(B) application quoting the provision under Section 45 of the Evidence Act. But, the impugned order itself would reveal that such a contention was taken by the petitioner at stage of examination under Section 313 Cr.PC. The contention of the petitioner, in essence, is that the plaintiff had misused the cheque and manipulated the same by effecting correction. True that the petitioner not quoted the provisions viz., Section 243(2) of Code of Criminal Procedure in Annexure B petition. In that context, it is to be noted that non-mentioning or misquoting a provision of law cannot be reason for not considering the request made in a particular Crl.M.C No.3127/2007. : 6 : application in the light of the relevant provisions under law. Evidently, the petitioner called upon to defend himself and therefore, he was having a right to defend himself as every accused has a right to fair trial. Section 243 of the Code of ## Criminal Procedure reads thus:- 243: Evidence for defence:- 1: The accused shall then be called upon to enter upon h is defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record. 2. If the accused, after he had entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing; Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice. 3. The Magistrate may, before summoning any witness on an application under subsection (2) require that the reasonable expenses incurred by the witness in attending for the purpose of the trial be deposited in Court. ## 4. A perusal of the above section would undoubtedly that the right to defend oneself is available to all the accused and it is in fact, a fundamental right guaranteed under Article 216 of Constitution of India. When that be so, the decision as to in Crl.M.C No.3127/2007. : 7 : what manner the evidence is to be let in to prove his case is a matter to be decided by the accused. In that context, it is relevant to refer to the decision of the Hon'ble Supreme Court reported in **Nagappa v. Muralidhar (2008(3)KLT 158)** . It is held therein that “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-s.(2) of S.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 should not be allowed to unnecessarily protracting the trial or summon witnesses whose evidence would not be at all relevant.” In the decision reported in Someswar Rao G V. Samineni Nageshwar Rao (2009(2)KLD), the Hon'ble Apex Court held:- Indisputably, an accused is entitled to a fair trial which is a part of his fundamental right as guaranteed under Article 21 of the Constitution of India. The concept, however, cannot be put to a strait jacket formula. A court of law will have to consider each application filed by an Crl.M.C No.3127/2007. : 8 : accused praying for comparison of his signature on a disputed document with his admitted signature on its own merits. No hard and fast rule can be laid down thereof. 5. Thus it is obvious that the prime consideration must always be to offer a fair trial to the accused and it is in fact, to ensure the same that the right to evidence for defence has been recognised by the Parliament in terms of Sub-Section 2 of Section 243 of Code of Criminal Procedure. Therefore while considering an application like Annexure(B) application provisions under Section 243(2) of the Code of Criminal Procedure have to be borne mind. True that while considering such an application if the Court is of the opinion that the application is filed solely for the purpose of protracting a trial, certainly that can be dismissed. Bearing in mind the said position of law the question of sustainability of the impugned order dismissing the application submitted by the petitioner for referring the cheque in question for examination by an expert attached to the Forensic Science Laboratory, was dismissed citing the aforesaid reasons, is to be considered. As already noticed hereinbefore two reasons have been assigned for rejecting the said application. The first of course is based Crl.M.C No.3127/2007. : 9 : on a presumption arrived at by the Court after taking note of the specific case of the complainant. I am afraid, such a reasoning cannot be sustained in law. Merely because, the complainant has a case that the accused had brought a cheque dated 9.11.2005 to his residence and got it signed and handed over to him for discharging the liability to the tune of Rs.5,00,000/- the right of defence available to the petitioner by leading evidence cannot be denied. In fact, in view of Section 243 of Code of Criminal Procedure, the accused is having a right to rebut the said case of the complainant. What should be the manner in which he is to lead evidence is a matter to be decided by the accused, subject, of course, of its admissibility in law. The specific case of the petitioner/accused is that the complainant had manipulated and effected correction in the cheque in question and that is relevant and crucial for proving his innocence. Evidently, the order impugned would reveal that based on an assumption that in all probability the accused might have brought such a cheque with corrected date and handed over to the complainant the learned Magistrate rejected the request of the petitioner made in Annexure B Crl.M.C No.3127/2007. : 10 : application. I am of the considered view that such an approach would definitely deny a fair trial to the accused. The fact that the petitioner had failed to reply to the statutory notice issued by the complainant also cannot be countenanced denying him a fair trial. Evidently, such a notice was issued with a view to enable the accused to pay off the debt if he is legally liable to pay the amount covered by the dishonoured cheque. However, that by itself is not sufficient to find the petitioner guilty. Therefore, the impugned order whereby the request of the petitioner for referring the cheque in question for examination by an expert attached to the Forensic Science Laboratory under State of Kerala on the aforesaid reasons calls for interference. Fair trial includes granting of fair and proper opportunity allowed by law to prove one's innocence. Therefore, denial of such an opportunity in the circumstances expatiated above amounts to denial of a fair trial. In the said circumstances, this Criminal M.C is allowed. The impugned Annexure C order is quashed. The Judicial First Class Magistrate Court I, Chengannur shall refer the cheque in question viz., original of Annexure A cheque for Crl.M.C No.3127/2007. **==> picture [25 x 9] intentionally omitted <==** examination by an expert attached to the Forensic Science Laboratory, Government of Kerala for the purpose of getting a report so as to ascertain whether there is any manipulation/correction in the date bearing on the said cheque. Needless to say that on receipt of such a report the trial in C.C 256/2006 shall be proceeded with, in accordance with law. Sd/- **C.T. RAVIKUMAR, JUDGE** jma //true copy// P.A to Judge