Rajan v. T.K. Madusoodanakurup and The State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE 17TH DAY OF MAY 2013/27TH VAISAKHA 1935 Crl.Rev.Pet.No. 861 of 2013 () AGAINST THE ORDER DT.19.4.2013 IN CMP NO.118/2013 IN CC NO.35/2012 ON THE FILE OF THE JFCM-III, MAVELIKKARA ------------------------------- ## REVISION PETITIONER(S)/REVISION PETITIONER/PETITIONER/ACCUSED: -------------------------------------------------------------------------------------------------------------------------- RAJAN, AGED 50 YEARS M/S. KAMBISSERIL TRADERS, MARKET ROAD THEKKEKKARA (PO), MAVELIKKARA. BY ADVS.SRI.T.ANIL KUMAR SRI.K.B.ARUNKUMAR COMPLAINANT(S)/RESPONDENTS/COUNTER PETITIONER/COMPLAINANT: -------------------------------------------------------------------------------------------------------------------- 1. T.K. MADUSOODANAKURUP, PROPRIETRO, RAMCO AGENCIES, MAVELIKKARA PIN:690 101. ## 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682 031. BY PUBLIC PROSECUTOR MR.RAJESH VIJAYAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14-05-2013, THE COURT ON 17.05.2013 PASSED THE FOLLOWING: ## **K.RAMAKRISHNAN, J.** -----------------------------------------------------------Criminal Revision Petition No.861 of 2013 -----------------------------------------------------------Dated this the 17[th] day of May 2013 ## Order This revision petition was filed by the petitioner/accused in Criminal MP No.118/2013 in CC No.35/2012 on the file of the Judicial First Class Magistrate Court-III, Mavelikkara. 2. When the revision petition came up for admission, I felt, on considering the question involved, that there is no necessity to call for the records or to issue notice to the first respondent and thought that the revision itself can be disposed of at the admission stage and so, notice to the first respondent is dispensed with and the records are not called for. 3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor appearing for the second respondent. The case was taken on file on the basis of a private complaint filed by the first respondent herein under Section 138 of the Negotiable Instruments Crl.RP No.861/13 2 Act (hereinafter referred to as the Act) on the basis of a cheque, alleged to have been given by the revision petitioner in discharge of a legally enforcible debt, on 7.2.2010. The case of the complainant was that the cheque was dishonoured for the reason “ _funds insufficient_ ” and in spite of notice issued, intimating the dishonour and demanding payment of the amount, the revision petitioner did not pay the amount and so, he had committed the offence punishable under Section 138 of the Act and therefore, the complaint was filed. 4. The case was taken on file as CC No.35/2012 by the Judicial First Class Magistrate-III, Mavelikkara and summons was issued to the accused. When the revision petitioner appeared before the court below, the particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant was examined as PW1 and the documents produced by him, including the disputed Ext.P1 cheque, were marked. After closure of the Crl.RP No.861/13 3 complainant's evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought out in evidence against him and he further stated that the complainant was a whole-sale distributor of electronic home appliances and the revision petitioner is a retail dealer of electronic home appliances and he was having business transactions with the complainant in respect of supply of electronic goods, he had issued Ext.P1 as blank signed cheque to him on 7.2.2010 as security for the business transactions. He further stated that some of the electronic goods supplied to him by the complainant were defective and the same were replaced. The accused had paid the value of the goods on several occasions on instalment basis and by Ext.D1 invoice dated 7.7.2010, the entire amount was cleared as endorsed in Ext.D1 and this fact was admitted by the complainant also while he was examined as PW1. The blank signed cheque so given as security on 7.2.2010 was misused by the complainant and Crl.RP No.861/13 4 he has filed a false complaint against him. 5. In order to prove his contentions, he filed Criminal MP No.118/2013 before the lower court for sending the disputed Ext.P1 cheque for expert opinion to find out the age of the writing for filling up the cheque and also for putting the signature and to find out as to whether there is any interleniation made by inserting the number 1 before the number 2 in the date 7.2.2010. 6. The first respondent filed a counter, stating that the Criminal MP is filed only for the purpose of protracting the proceedings and the accused has no consistent case. 7. After hearing both sides and considering the overall circumstances brought out in evidence thus-far, the learned Magistrate, by the impugned order, dismissed the application, stating that there is no foolproof mechanism available to find out the age of the writings as claimed in the petition. Aggrieved by the same, the present revision has been filed by the revision petitioner, dissatisfied Crl.RP No.861/13 5 accused before the court below. 8. It is an admitted fact that there were business transactions between the complainant and the revision petitioner and Ext.P1 cheque was given by the accused to the complainant. According to the complainant, it was given in discharge of the amount due. But, according to the accused, the blank signed cheque was issued as a security for the business transactions, on 7.2.2010 and the amount due to the complainant was discharged on 7.7.2010, but misusing the cheque, the present complaint has been filed. The accused had no case that the date was put in the cheque. Further, the accused also had no specific case as to who is the author of the writings on the cheque except the signature. If there was any change in the ink used for filling up the cheque and putting the signature, that could be very well ascertained by the court by naked eye examination as well. The case of the complainant was that the accused brought the cheque duly filled and had put his signature in his presence. The complainant had no case Crl.RP No.861/13 6 that the writings on the cheque and the signature was put by the accused simultaneously. It is true that in **T.Nagappa v. Y.R.Muralidhar** (2008(5) SCC 633), it has been held that if the accused had a case that the writings on the cheque were not his and they were forged, then, he is entitled to adduce evidence by sending the disputed cheque for expert opinion and if such an application is filed, the right of the accused to prove his case, cannot be denied by dismissing the application. It has been further held in the said decision that it is an invaluable right available to the accused to defend his case and denying that right, will cause prejudice to him and the mere quoting of a wrong section, is not a ground for rejecting the prayer. But, there was no occasion for the Honourable Supreme Court to consider at that time, whether there was any standardised methodology available for ascertaining the age of the writings on a document, but it only considered the right of the accused to apply for sending the disputed Crl.RP No.861/13 7 document for expert opinion to prove his case. 9. In the decision in **R.Jagadeesan v. N.Ayyasamy** (2010 CRL.LJ 2917), the Madras High Court had occasion to consider this aspect and the learned Judge who decided the case had called for a report from the Assistant Director of Forensic Department of that State and ascertained as to whether there was any scientific method available for ascertaining the age of the writings on a document and it is seen from the decision that there was no such facility available in India and in that case, it was observed that in such circumstances, sending the documents for expert opinion as to the age of the writings will be a futile exercise and the accused cannot be permitted to send the document for opinion for that purpose. 10. In the case on hand, the scientific aspects were considered by the learned Magistrate in the impugned order and came to the conclusion that it is not 8 Crl.RP No.861/13 possible to ascertain the age of the writings by sending it for expert opinion as there is no standardised scientific method available for that purpose. Further, this Court has considered the same question while deciding Criminal MC No.4763/2008 (Anil Babu v. Raj Kumar) and in that case, a report was obtained from the Forensic Science Laboratory, wherein it was stated that there is no machinery available in India to ascertain the age of the writings and only the question regarding the authorship of the person who put the signature and the writings, by comparing the signature with the standard signature sent for expert opinion, was answered. Under such circumstances and also considering the fact that there is no facility available in the Forensic Science Laboratory for ascertaining the age of the writings on the document, the lower court was perfectly justified in dismissing the application for sending Ext.P1 cheque for expert opinion to ascertain the age of the writings and the signature on the document. Crl.RP No.861/13 9 11. However, it may be mentioned here that the expert opinion obtained under Section 45 of the Evidence Act is only an opinion evidence and if there are other materials available before the Court, the Court can ignore the expert opinion and consider the other materials and decide the case independently on that basis. It is not always necessary that the opinion evidence has to be relied on by the Court, if there are other circumstances available to overrule the same. So, the accused can adduce independent evidence regarding these aspects and if evidence is adduced on this aspect by the accused, the lower court is directed to consider that evidence as well to arrive at a just conclusion regarding the defence set up by the accused and dispose of the case in accordance with law, untrammelled by any of the observations made by the learned Magistrate in the impugned order. Crl.RP No.861/13 10 With the above observations, the revision petition is disposed of. Communicate this order to the court below forthwith as trial of the case is in progress. **K.Ramakrishnan, Judge** sta Crl.RP No.861/13 11