Thooliyath Usman v. The State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 23[RD] DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943** **CRL.MC NO. 7838 OF 2018** **CR.R.P. NO. 28/2018 OF SESSIONS COURT, MANJERI, MALAPPURAM** **C.C. NO. 782/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I,** ## **PERINTHALMANNA, MALAPPURAM** ## **PETITIONER/DEFACTO COMPLAINANT:** **THOOLIYATH USMAN AGED 56 YEARS S/O. MOHAMMED @ NANI HAJI, THOOLIYATH HOUSE, MANALAYA P.O., ANAMANGAD, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT** **BY ADV. K.RAKESH** ## **RESPONDENTS/STATE & ACCUSED:** **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031 - FOR THE SUB INSPECTOR OF POLICE, PERINTHALMANNA POLICE STATION, MALAPPURAM DISTRICT** **2 MOHAMMED IQBAL, S/O. MOYIN, PALAKKODE HOUSE, PERINTHALMANNA P.O., MALAPPURAM DISTRICT 679322** - **3 SAHIRA IQBAL, W/O. MOHAMMED IQBAL, PALAKKODE HOUSE, PERINTHALMANNA P.O., MALAPPURAM DISTRICT 679322** **4 P.V. SIVADASAN, S/O. UNNIKRISHNA WARRIER, PUTHAN VARIYAM, CHEMMNIYODE P.O., MALAPPURAM DISTRICT 679 325.** Crl.M.C.No.7838 OF 2018 2 **R1 BY SMT. C. SEENA, PUBLIC PROSECUTOR R4 BY ADV. SRI.U.K.DEVIDAS** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.10.2021, THE COURT ON 23.11.2021 PASSED THE FOLLOWING:** Crl.M.C.No.7838 OF 2018 3 ## **ORDER** Petitioner is the defacto complainant in C.C. 782/2013 on the file of the Judicial First Class Magistrate, Perinthalmanna. That case was taken on file on a private complaint preferred by the petitioner before the Judicial First Class Magistrate, Perinthalmanna which was forwarded to the police for registering a crime and investigation under Section 156(3) of the Code of Criminal Procedure. After completing investigation, charge sheet was laid against the accused i.e., respondents 2 to 4 alleging offence under Section 420 of the Indian Penal Code. The short allegations against the accused are that on 12.08.2009, the first accused had received a sum of Rs.15 lakhs from the petitioner in the presence of the other two accused on the promise that, that money would be invested in share market and the petitioner would be given a return of Rs. 1,000/- for every one lakh and that the amount would be repaid after three months. An agreement was also executed by the first accused. Later, on the same conditions another sum of Rs.10 lakhs was collected from the petitioner after two - Crl.M.C.No.7838 OF 2018 4 three months, which was also endorsed in the agreement. Again, another sum of Rs.10 lakhs was also collected on the same terms and conditions which also was incorporated in the agreement. Thus, altogether Rs. 35 lakhs was collected from the petitioner. The amount was not paid nor any profit was given and that prompted the petitioner to prefer a complaint and on conclusion of investigation charge sheet was laid. 2. The trail commenced and three witnesses were examined on the side of the prosecution. PW1 and some of the witnesses were already examined. Thereafter, during the midst of trial, the Assistant Public Prosecutor filed a petition under Section 311A of the Cr.P.C. i.e., Annexure B petition praying the court to obtain the specimen signature of accused No. 1 and send the agreement to the Forensic Science Laboratory for examination. That was objected by the accused persons and by Annexure C order that objection was upheld and the application was dismissed. Aggrieved by the same, the petitioner preferred a revision before the Sessions Court, Manjeri which was dismissed as not maintainable in the light of the decision of the Hon'ble Supreme Court in **Sethuraman v. Rajamanickam [2009(2) KLT Suppl.** Crl.M.C.No.7838 OF 2018 5 **511 (SC)]** and now challenging Annexure C order the petitioner has moved this Court under Section 482 of the Cr.P.C. 3. I heard the learned counsel for the petitioner and also the learned Public Prosecutor. 4. The learned counsel, relying on the decisions reported in **Subin A.S. v. State of Kerala and another [2012(1) KHC 6]** and **Radhakrishnan v. Saju Thuruthikunnel [2013 (4) KLT 859]** argued that such an application is maintainable and the trial court should have obtained handwriting and signature of the first accused and should have sent it for expert report, but ignoring the relevant aspects, the court rejected the application which is liable to be reversed. 5. I heard the learned Public Prosecutor also. Even though notice was served on the other respondents, the fourth respondent alone entered appearance and I heard learned counsel on both sides. 6. The application was dismissed mainly on the consideration that even though PWs 1 to 3 were summoned by the court for examination, they did not turn up and thereafter, coercive steps under Sections 82 and 83 of the Cr.P.C. had to be taken for ensuring their presence. Secondly, that the statement given by them Crl.M.C.No.7838 OF 2018 6 are contradictory and inconsistent. The version of independent witnesses is said to be wholly unsatisfactory and according to the learned Magistrate, the independent witnesses have ‘hopelessly spoiled to support the prosecution case’ and that the expert opinion is a very weak piece of evidence, so the court held that by obtaining such a report the prosecution case is not going to improve. 7. The learned counsel submitted that it is a case in which a big amount of Rs. 35 lakhs was paid by the petitioner to the first accused and therefore, in the nature of allegations such a document has to be admitted and proved in evidence and that PW1 had deposed that the document was executed at Hotel Royal Plaza. Even though the case was investigated by the police, they did not take care to obtain the specimen signature of the accused and send the document for examination in the Forensic Science Laboratory, which is fatal to the case. On getting the handwriting and signature of the petitioner and if a report is received from the Forensic Science Laboratory, that would be a corroborative piece of evidence and therefore, it is absolutely essential that the document be sent for examination in the Forensic Science Laboratory. 8. In fact the decisions relied on by the learned counsel for Crl.M.C.No.7838 OF 2018 7 the petitioner have rendered in different context and cannot be applied to the facts of the case. There the application of Section 311A of the Cr.P.C. was the question in both the cases. But here, it cannot be doubted that application under Section 311A of the Cr.P.C. in the given circumstances is very much relevant and pertinent and in appropriate cases, the handwriting and signature of the accused or suspect can be obtained not only during the period of investigation but at the time of trial itself, since Section 311A enables the court to obtain the said signature or handwriting at the time of pendency of the proceedings. Here such an aspect is not in doubt. 9. The learned Magistrate after considering the oral testimony of witnesses including independent witnesses said that obtaining expert opinion has no relevance at all. The Magistrate was trying to say that the expert opinion is a very weak piece of evidence. After reading the oral testimony of the defacto complainant and other independent witnesses, what the Magistrate wanted to say is that there is no purpose in getting such an opinion. Even though it is not stated in exact terms, the writing on the wall is clear; what can be read between the lines is that obtaining such a Crl.M.C.No.7838 OF 2018 8 report is a futile exercise and that is not going to improve the case of the petitioner. 10. Before going into the correctness of the decision of the learned Magistrate it is appropriate to go through Section 45 of the Evidence Act which provides that when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of the persons specially skilled in such foreign law, science or art, or in question as to identity of handwriting or finger expression are relevant facts. All the same, it is the settled proposition of law that an expert's evidence is only a piece of evidence. Judge in fact will have to consider the evidence with other pieces of evidence. What is main evidence and what is corroborative depends upon the facts of each case. It is also trite that handwriting expert’s evidence alone is insufficient to proceed to conviction, that expert’s evidence cannot always outweigh direct evidence. Expert’s evidence is only corroborative piece which has to be considered along with other evidence. In other words, what is important is the oral evident or substantial evidence, that is brought before court and an expert’s opinion can be taken only as a Crl.M.C.No.7838 OF 2018 9 corroborative piece of evidence. It is also stated in **Sri. Sri. Sri. Kishore Chandra Singh DEO, v. Babu Ganesh Prasad Bhagat and Others [AIR 1954 SC 316]** and **Bhagwan Kaur v. Sri. Maharaj Krishan Sharma and Others [AIR 1973 SC 1346]** etc., that the court not to give much weight to the evidence of handwriting expert, that his evidence must yield to the positive evidence in court. Conviction on the uncorroborated testimony of handwriting expert is untenable. The Hon'ble Supreme Court has held in **State of Maharashtra and others v. Sukhdeo Singh and others [1992 Crl.LJ 3454]** , the science of identification by handwriting is imperfect and frail as science of identification of finger prints. Quality of handwriting experts depends on merits of opinion. In other words, an expert’s opinion can be used as a corroborative piece of evidence and it is not a substantive piece of evidence and that cannot be based upon to enter upon conviction. Normally, it is not safe to treat expert’s evidence on handwriting as sufficient basis for conviction. It may however be considered along with the other various items of external and internal evidence. ( **Ram Chandra and Another v. State of Uttar Pradesh [AIR 1957 SC 381]** and **Satya Bhusan Shome v. State [1973 Crl.LJ 76]** Crl.M.C.No.7838 OF 2018 10 etc.) 11. Evidence of eye witnesses is the substantive piece of evidence and if eye witnesses have spoken about a fact in issue, expert’s view can be taken only as a corroborative piece of evidence. It is held in various decisions of the Hon’ble Supreme Court that reliable direct evidence should not be rejected on the hypothetical expert's opinion. Of course opinion of the handwriting expert is admissible and it is entitled to weight if confirmed by direct evidence even when the expert is not acquainted with the script. These are the settled propositions of law. Then let us consider how, these positions can be applied to the facts of the case. 12. As indicated earlier the case of the petitioner is that the first accused had collected an amount of Rs.35 lakhs in three instalments from him, Rs.15 lakhs first, Rs.10 lakhs each on two other occasions and that an agreement was executed and that the police was approached by the petitioner when that amount was not repaid nor profit was shared as promised in Ext. P1 agreement. At that point of time, the petitioner approached the police and got the crime registered and thereafter, after investigation the accused were summoned. Annexure B petition was moved by the Assistant Public Crl.M.C.No.7838 OF 2018 11 Prosecutor in the midst of trial after examination of the petitioner as PW1 and other witnesses. The learned Magistrate has considered their testimony before rejecting the application. Firstly, it is stated that the petition was been moved at a belated stage. According to her, even the petitioner was hesitant to approach the court and it was through coercive steps that his presence was procured. It is not known as to why steps under Sections 82 and 83 of the Code of Criminal Procedure were initiated for examination of a witness, which is unusual. Whatever it may be, the order suggests that the learned Magistrate had gone even to that extent and independent witnesses including PW1, the petitioner were examined after taking coercive steps. 13. Secondly, it is pointed out that there is absolutely no corroboration in the version of the petitioner and other independent witnesses. The learned Magistrate has also highlighted various contradictory versions given by the petitioner _vis-a-vis_ Ext.P4 complaint, the statement of witnesses before court and also statements given to the police when they were examined under Section 161 of the Code of Criminal Procedure; there were considerable inconsistencies in the version of the petitioner as PW1 Crl.M.C.No.7838 OF 2018 12 and other independent witnesses, there were also considerable improvements in the version and the testimony of PWs 1 and 2 were contradictory. Moreover, the court has also stated that the testimony of independent witnesses have spoiled the case of the prosecution. 14. Now the moot question is whether there is any point in sending for a report for examination of the document by the handwriting expert in the backdrop of the evidence tendered by the petitioner and other independent witnesses before court. As noticed earlier, the evidence of an expert especially that of a handwriting expert is rather weak and frail. That can be used only for the purpose of strengthening or corroborating the ocular witnesses or substantive evidence brought before court. It is only advisory in nature. The learned Magistrate on facts has found that there is absolutely no necessity in getting expert opinion, that would not give life to a case which is otherwise has become very weak. 15. After going through the impugned order, I have no doubt that, obtaining the signature and handwriting of the petitioner and sending it for expert’s opinion, in the factual backdrop of the case is totally unwarranted and therefore, I do not find any reason Crl.M.C.No.7838 OF 2018 13 to interfere with the order under challenge. The petition is liable to be dismissed. Dismissed. Sd/- **K.HARIPAL** **JUDGE** **DCS/21.11.2021** Crl.M.C.No.7838 OF 2018 14 ## **APPENDIX** ## **PETITIONER'S ANNEXURE** |**ANNEXURE A**|**TRUE COPY OF THE DEPOSITION OF**| |---|---| ||**PW1/PETITIONER DATED 6.4.2018 IN C.C.NO.**| ||**782/2013 OF THE J.F.C.M.-1, PERINTHALMANNA**| |**ANNEXURE B**|**TRUE COPY OF THE APPLICATION FILED UNDER**| ||**SECTION 311 A CR.P.C. BY ASSISTANT PUBLIC**| ||**PROSECUTOR, DT. 8.6.2018, 19 & 20**| |**ANNEXURE C**|**TRUE COPY OF THE ORDER DATED 4.7.2018 IN**| ||**C.M.P. NO. 2099/2018 IN C.C. NO. 782/2013**| ||**OF THE J.PF.C.M.-1, PERINTHALMANNA**| |**ANNEXURE D**|**TRUE COPY OF THE ORDER DATED 8.10.2018 IN**| ||**CRL. R.P. NO. 28/2018 OF THE COURT OF**| ||**SESSION, MANJERI.**|