Gimcy Tonio v. State of Kerala represented by Public Prosecutor, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 28TH DAY OF NOVEMBER 2017/7TH AGRAHAYANA, 1939** **Crl.MC.No. 7601 of 2017 () ---------------------------** ## **PETITIONER(S)/ACCUSED:** **---------------------** **GIMCY TONIO, AGED 34 YEARS, S/O. ANTONY, MADUKKOLIL HOUSE, SANTHIGRAM KARA, ERATTAYAR.** **BY ADV. SRI.S.SACHITHANANDA PAI** ## **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **2. THOMAS, AGED 39 YEARS, S/O. JOSEPH, CHAKKALACKAL HOUSE, KANCHIYARKARA, KANCHIYAR VILLAGE, IDUKKI DISTRICT - 685 511.** **R2 BY ADV. SRI.A.SHAFEEK (KAYAMKULAM) R1 BY SRI.JESTIN MATHEW, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 7601 of 2017 ()** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **ANNEXURE 1 COPY OF THE ORDER DATED 10.10.17 IN C.M.P. 557/17 IN ST 63/2016 OF JFCM COURT, KATTAPPANA.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** ## **NIL** **//TRUE COPY//** **PS TO JUDGE.** 21/12 ## **ALEXANDER THOMAS, J. ------------------------------------** ## **Crl.MC No.7601 of 2017** ------------------------------------Dated, this the 28[th] day of November, 2017 ## **O R D E R** The order under challenge in this petition is the one rendered by the trial court concerned (Court of Judicial Ist Class Magistrate-II, Kattappana) on 10.10.2017 at Annexure-1, whereby the plea made by the accused for sending the cheque and other requisite specific materials for handwriting analysis by the experts of Forensic Science Laboratory has been rejected. 2. Heard Sri.S.Sachithananda Pai, learned counsel appearing for the petitioner (accused) and Srif.A.Shafeeq (Kayamkulam), learned counsel appearing for R-2 (complainant) and Sri.Jestin Mathew, learned Prosecutor appearing for R-1 (State). 3. After hearing both sides, this Court is appraised that the case set up by the complainant in his complaint is to the effect that all the handwritten entries as well as the signature in the dishonoured cheque involved in this case are that of the accused, whereas the case set up by the defence during cross-examination of PW1 is to the effect that all the handwritten entries in the cheque, except the signature, do not belong to the accused and that a blank signed cheque given to the complainant for Crl.MC7601/17 2 some other transaction has been misused by him. Further that, PW1 (complainant) has reiterated in cross-examination that all the handwritten entries in the dishonoured cheque are that of the accused. It is on this basis that the petitioner (accused) had filed Crl.MP No.557/2017 in ST No.63/2016 with a prayer that the trial court should send the dishonoured cheque along with requisite materials for handwriting analysis by the experts of the Forensic Science Laboratory concerned. The said plea made by the accused has been rejected by the trial court as per the impugned Annexure-1 order dated 10.10.2017 on the ground that the said plea is belated and that the accused has not availed the opportunity to send reply to the statutory demand notice sent by the complainant and further that the complainant is justified to use a blank signed cheque, in the light of the dictum laid down by this Court in **General Auto Sales** v. **Vijayalakshmi** , reported in 2005 (1) KLT 478. 4. True that the accused has not sent any reply to the statutory demand notice sent by the complainant in terms of Section 138 proviso (b) of the Negotiable Instruments Act. But that is not certainly the end of the role to the accused. It is open to the accused to avail all reasonable evidences open to him in the manner known to law and to shape up his defence strategy in the manner as advised to him by the counsel of his Crl.MC7601/17 3 choice and so long as the evidence sought to be adduced by the accused is on relevant aspects, the trial court ordinarily should accede to the request of the accused for availing such opportunity for defence evidence, unless the trial court is convinced that the said plea made by the accused is only to unnecessarily protract the proceedings and that no relevant or objective purpose would be subserved by such attempt to adduce defence evidence etc. 5. In the instant case, the case set up by the complainant is that the accused had voluntarily executed and issued the dishonoured cheque involved in this case and that all the handwritten entries and the signature in the said cheque were made by the accused, whereas the specific defence set up by the accused during the cross-examination of PW1 (complainant) is to the effect that a blank signed cheque issued by the accused to the complainant for some other transaction has been misused in this case and that he had never voluntarily executed and issued the cheque as alleged in the present complaint and that all the handwritten entries in the said cheque, except the signature, are not made by the accused etc. The dictum laid down by this Court in **General Auto Sales** v. **Vijayalakshmi** , reported in 2005 (1) KLT 478 is on an entirely different factual matrix, where the complainant has got a case that a blank signed cheque was issued Crl.MC7601/17 4 to him on condition that he could encash the cheque as agreed to between the parties, then the very tendering of a blank signed cheque by the accused to the complainant would give implied authority to the complainant to fill up the cheque for discharging the liability owed by the accused to the complainant etc. The facts of the case in hand are on an entirely different footing inasmuch as the specific case of the complainant is to the effect that what was issued to him was not a blank signed cheque, but, that cheque was issued in discharge of the liability and that all the handwritten entries and the signature in the cheque were duly made by the accused etc., whereas the accused would urge that except the signature, all the other handwritten entries in the cheque are not made by him etc. Therefore, the plea made by the accused to subject the cheque for expert handwriting analysis is to determine the relevant and just purpose. 6. The Apex Court in the decision in **T. Nagappa** v **Y.R. Muralidhar** , reported in (2008) 5 SCC 633, has held that as to what should be the nature of the defence evidence, is not a matter, which should be left only to the sole discretion of the trial court and it is the accused who knows best how to prove his defence, and though court being the master of the proceedings must determine as to whether the application filed by the accused in terms of Section 243(2) of Cr.PC is bona fide or not or whether Crl.MC7601/17 5 thereby he intends to bring on record a relevant material, etc., ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses, and if permitted to do so, steps therefor must be taken within a limited time. The accused should not be allowed to unnecessarily protract the trial or summon witnesses, whose evidence would not be at all relevant. Rejection of bona fide application of the accused under Section 243(2) of Cr.PC to substantiate his right to defence in respect of a cheque, was held to be improper in the facts of that case. It will be profitable to refer to paras 9 to 11 of the above said decision of the Apex Court, which read as follows: _"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 should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant._ _10. The learned Trial Judge as also the High Court rejected the contention of the appellant only having regard to the provisions of Section 20 of the Negotiable Instruments Act. The very fact that by reason thereof, only a prima facie right had been conferred upon the holder of the negotiable instrument and the same being subject to the conditions as noticed hereinbefore, we are of the opinion that the application filed by the appellant was bona fide._ _11. The issue now almost stands concluded by a decision of this Court in Kalyani Baskar v. M.S. Sampoornam[1] (in which one of us, L.S. Panta, J., was a member) wherein it was held : (SCC p.262, para 12)_ Crl.MC7601/17 6 _"12. Section 243(2) is clear that a Magistrate holding an inquiry under CrPC 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."_ _1 (2007) 2 SCC 258 : (2007) 1 SCC (Cri) 577.”_ ## 7. The Apex Court in the decision in **Kalyani Baskar (Mrs.)** v. ## **M.S. Sampoornam (Mrs** .), reported in (2007) 2 SCC 258, has dealt with a case where prayer was made by the accused to ascertain the genuineness of the signature on it and that by declining the plea made by the accused for expert opinion, it deprived the accused an opportunity of his right to rebut the complainant’s version and that the accused could not be convicted without an opportunity being given to present his/her defence evidence and that denial of the said opportunity to defence would lead to an unfair trial, etc. It will be relevant to note paras 12 to 14 of the above said decision Crl.MC7601/17 7 of the Apex Court in **Kalyani Baskar’s** case ( _supra_ ), which read 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 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 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._ _13 For all the foregoing reasons, we allow this appeal and set aside the order of the High Court dated 10.02.2004 passed in Criminal Revision Case No.335 of 2002 by which the order dated 15.11.2001 of the Judicial Magistrate made in Crl. M. P. No.341 of 2001 in C.C. No. 439 of 1998 dismissing the application of the_ Crl.MC7601/17 8 _appellant under Section 243 Cr.P.C. was affirmed. Accordingly, Crl. M. P. No.341 of 2001 in C.C. No.439 of 1998 on the file of the Judicial Magistrate, Tambaram, Chennai, shall stand allowed. The learned Magistrate shall take appropriate steps for obtaining the report of handwriting expert on the point whether the signature on the cheque is that of the accused and shall proceed with the trial of the case in accordance with law. Since the case is very old, further proceedings shall be taken with utmost expedition._ _14. We make it clear that any observation made in this order shall not be construed as an expression of opinion on the merits of the case and the same shall be decided by the Magistrate on its own merit.”_ 8. In the light of these legal principles as settled by the Apex Court and by various other rulings of High Courts, the abovesaid approach made by the trial court in this case requires interdiction. Accordingly, the impugned order at Annexure-1 rejecting the plea of the accused will stand set aside. 9. Shri.A.Shafeek, learned counsel appearing for R-2 (complainant) would submit that the cheque in question was issued on 20.06.2014 and that there is every possibility that the accused might deliberately vary his handwriting style, so as to get an opinion from the Forensic Science Laboratory that the handwritings in the dishonoured cheque does not match with his specific handwriting. Further, it is pointed out by the complainant that the accused was previously working as an employee in Idukki District Taxi Drivers Co-operative Society, Kattappana and that his service has been terminated from that institution and that Crl.MC7601/17 9 sample handwritings at the relevant time in 2014 will be available with that co-operative society and that the trial court would take steps to summon necessary documents from that co-operative society to get the admitted signature of the accused at the relevant time in the year 2014 or near that period for getting an objective opinion of the Forensic Science Laboratory. The said plea made by the complainant for getting contemporaneous records from the said co-operative society, is not opposed by the learned counsel for the petitioner (accused). Accordingly, it is ordered that it will be open to the complainant to file appropriate application before the trial court to call for necessary documents and records from Idukky District Taxi Drivers Co-operative Society, Kattappana in order to get admitted handwritings of the accused of the contemporaneous period and in order to send such materials also to the Forensic Science Laboratory along with the original of the cheque for expert opinion on the handwriting in the cheque. Steps in that regard may be taken by the trial court without any further delay. So also, it will also be open to the trial court to obtain specific handwritings of the accused as per the requisite procedure and all such materials and the original of the cheque should be sent along with the requisite requisition to the Forensic Science Laboratory for obtaining their expert opinion without much delay. The Forensic Science Laboratory Crl.MC7601/17 10 authorities will ensure that their expert opinion is rendered to the trial court without too much delay, preferably within a period of 4 to 5 months. The trial court will forward a copy of this order also to the Forensic Science Laboratory authorities for necessary compliance. After obtaining the Forensic Science Laboratory’s report, it will be open to either side to examine the expert as a witness, if they choose to do so. Thereafter, the trial court will ensure that the trial is completed expeditiously, within a period of six weeks from the date of receipt of the expert opinion from the Forensic Science Laboratory authorities. The petitioner will produce a certified copy of this order before the trial court for necessary action. With these observations and directions, this Criminal Miscellaneous Case would stand finally disposed of. **ALEXANDER THOMAS JUDGE** jg