Issac Thomas vs State of Kerala

P.S. Gopinathan, J.—The revision Petitioner is the accused in S.T. No. 482/2007 on the file of the Chief Judicial Magistrate, Kottayam. The second Respondent herein prosecuted the revision Petitioner alleging offence u/s 138 of the Negotiable Instruments Act with an allegation that in discharge of a legally enforceable debt, the revision Petitioner issued a cheque for Rs. 75,000/- dated 24.12.2006 drawn on Canara Bank, Mallappally branch and that when the cheque was sent for collection it was dishonoured with the endorsement ''insufficient funds'' and that despite the request to discharge the liability, no payment was made.

Responding to the process, the revision Petitioner entered appearance and pleaded not guilty. When particulars of the allegations were read over and explained, he pleaded not guilty. Hence he was sent for trial. On the side of the prosecution the second Respondent was examined as PW-1 and Exts. P-1 to P-6 were marked. When the revision Petitioner was examined u/s 313 of the Code of Criminal Procedure he took a defence that he didn''t borrow from the second Respondent and there was no liability to he discharged and that the cheque in dispute is the one which was lost from his possession sometime back while on journey and that there is no consideration and that the second Respondent is not known to him and that the matter was reported to the bank. On the side of the revision Petitioner the Manager of the Canara Bank, Mallappally branch was examined as DW-1 and Ext. D-1, the ledger extract of the account was marked. Through DW-1, the 2nd Respondent also proved Exts. P-7 and P-8.

It appears that the revision Petitioner filed two petitions i.e., C.M.P. No. 1568/2008 and C.M.P. No. 1569/2008, one requesting to reopen the evidence to forward the cheque in dispute for expert opinion.

The latter one is u/s 45 of the Indian Evidence Act to send the cheque for expert opinion and to as certain the age of the writings and to have the expert report. The latter application was dismissed with reasoning that there is no science to ascertain the age of the writings. Consequently, the other petition was also dismissed.

The learned Magistrate on appraisal of the evidence arrived at a conclusion of guilty. Consequently, the revision Petitioner was convicted and sentenced to undergo simple imprisonment for three months and a fine of Rs. 80,000/- with a default clause to undergo simple imprisonment for a further period of one month. In Crl. A. No. 291/2008, the conviction was confirmed, but the substantive sentence was reduced to imprisonment till rising of the court with a fine of Rs. 75,000/-. Assailing the legality, correctness and propriety of the above conviction and sentence as modified in appeal, this revision petition was filed.

The main argument that was advanced is that by rejecting C.M.P. No. 1569/2008 filed u/s 45 of the Indian Evidence Act, fair trial was denied to the revision Petitioner. According to the learned Counsel, there is science to ascertain the age of the writings. But the learned Magistrate dismissed the petition for the reason that there is no science to ascertain the age of the writings. It was also argued that the revision Petitioner had the valuable right to rebut the presumptions u/s 118 and 139 of the Negotiable Instruments Act and it is to rebut that legal presumption the revision Petitioner applied for forwarding the cheque for an expert opinion and it was done at the appropriate stage and there is no good reason to reject the petition and by rejecting the petition, justice was denied. The learned Counsel had canvassed my attention to a decision reported in Mrs. Kalyani Baskar Vs. Mrs. M.S. Sampornam, , wherein it is held as follows:

Section 243(2) is clear that a Magistrate holding an inquiry under Code of Criminal Procedure in respect of an offence triable by him does not exceed his powers u/s 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 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." The above dictum was followed in Nagappa v. Muraleedharan 2008 (3) KLT 158 (SC). According to the learned Counsel, there is science to determine the age and the argument in contra is devoid of merit and in the light of the law laid down by the Apex Court the request of the revision Petitioner to forward the cheque for expert opinion should have been allowed.

In contra, the learned Counsel for the Respondent argued that the evidence advanced is one that is found out at the later stage of the trial and there is no bona fide and that the evidence on record is sufficient enough to come to a finding that the revision Petitioner executed the cheque and there is absolutely no reason to forward the cheque for expert opinion.

From the evidence on record, I find that it could not be hold that there is lack of bona fides in the revision Petitioner applying to forward the cheque in dispute for expert opinion. The evidence of DW-1 would show that bank had received communication from the revision Petitioner and it is recorded in the computer. In the light of the evidence of DW-1 it couldn''t be held, that the defence now urged is a newly invented one. The learned Magistrate ought to have given an opportunity to the revision Petitioner to substantiate his defence. The Trial Court should not have curtailed the right of the accused to adduce defence evidence. It should have borne in mind that the right to adduce defence evidence is a very valuable right. Right to adduce evidence is part of the right for fair trial guaranteed by the Constitution. It shall not be so casually denied. So long as the is no material to conclude that the petition to forward the cheque for expert opinion is with mala fides or to protract the is, it should have been allowed. In this view of the matter, the order dismissing the petition had in fact, denied the fair trial. I find that the request by the revision Petitioner to forward the cheque for expert opinion should be granted. In the above circumstance, I am not going to the merits of the case. The matter requires to be remanded to the Trial Court for giving an opportunity to the revision Petitioner to get an expert opinion.

In the result, the Revision Petition succeeds. The conviction and sentence under challenge are set aside. The matter is remanded back to the Trial Court. The petition C.M.P. No. 1569/2008 would stand allowed. The Trial Court shall hear the parties and decide as to which expert the document should be sent. Upon getting expert opinion, the matter shall be disposed afresh.