Kalaiselvi vs A. Sivasubramanian

R. Mala, J.—Challenging the impugned order passed in Crl.M.P.No. 316 of 2008 in S.T.C.No. 2880 of 2007 dated 11.04.2008 passed by the learned Judicial Magistrate No. 4, Tirunelveli, the present revision has been filed.

The learned counsel appearing for the petitioner would submit that the revision petitioner is an accused in S.T.C.2880 of 2007 and after the questioning of accused under 313 of Cr.P.C., the accused filed an application in Crl.M.P.No. 316 of 2008 for sending the cheque in question for Forensic Department for comparing the writings. The said application was dismissed stating that with a view to drag on the proceedings, that application was filed. Against the said order, the petitioner/accused has come forward with this revision.

The learned counsel for the petitioner would submit that an opportunity must be given to him to put forth his defence. He relied on a decision of unreported judgment in Crl.R.C.No. 694 of 2013 and submit that opportunity must be given to him. He further submitted that he has not disputed the signature in the cheque and that signature has been obtained forcefully by one Vely and hence, to prove the case of the petitioner, that cheque will have to be sent to Forensic Department for comparison and hence, he prayed for setting aside the impugned order.

Resisting the same, the learned counsel appearing for the respondent would submit that once the signature in an instrument is admitted, it is the duty of the accused to prove that to whom he has handed over the same. Furthermore, he would submit that as per Section 20 of the Negotiable Instrument Act, the accused only has authorised holder to fill up the cheque and hence, there is no question of sending the document for comparison. To prove the same, he relied on a decision of this Court in S. Gopal Vs. D. Balachandran, .

He would further submit that no purpose will be served for sending the document to Forensic Department and only with a view to drag on the proceedings, this application has been filed and the trial Court has considered all the aspects in a proper perspective and he prayed for dismissal of the application.

Considering the rival submissions made by both sides and on a perusal of the typed set of papers would show that the respondent filed a private complaint against the petitioner under Section 138 of the Negotiable Instrument stating that the revision petitioner has borrowed a sum of Rs. 2 lakhs and to discharge the same, he issued a cheque dated 12.12.2006 and that has been presented for encashment on the same day and the same has been returned with an endorsement ''in sufficient fund'' on that day itself. On 19. 12.2006, the respondent issued statutory notice and that has been received by the revision petitioner on 20.12.2006. The revision petitioner sent a reply on 04.01.2007 and he has not paid the amount. Therefore, the respondent has preferred a complaint under Section 138 of the Negotiable Instrument and the complaint has been taken on file and after examination of the witnesses and after questioning of the accused under Section 313 of Cr.P.C., the revision petitioner has filed an application under Section 243(2) of Cr.P.C. for sending the instrument to Forensic Department.

Admittedly, the signature in the cheque has been admitted by the learned counsel for the petitioner, whereas he has stated that one Velu has obtained signature in the cheque by force and that defence has to be proved by the revision petitioner before the trial Court.

It is also an admitted fact that the signature in this cheque has not been disputed. As per the version of the counsel for the respondent, as per Section 20 of the Negotiable Instrument, holder of the document is the authorised person to complete the document. It is appropriate to consider the decision relied on by him reported in S. Gopal Vs. D. Balachandran, , wherein it was specifically mentioned in paragraph as follows:

"Section 20 of the Negotiable Instruments Act reads as follows:

:Inchoate stamped instrument - Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount:

Provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder."

A bare reading of Section 20 of the Negotiable Instruments act would go to show that it would apply to only a stamped instrument viz., pronote and bill of exchange and not to the cheques. As per Section 20 of the Negotiable Instruments Act, the holder in due course has every authority to complete the blank pronote and bill of exchange delivered to him after properly signing therein by the maker of the instrument. But, Section 20 will have no application to the blank cheques issued after signing by the drawer.

Therefore, I am of the view that since the signature is admitted by the petitioner/accused, as per Section 20, the holder is entitled to complete the inchoate instrument and the above decision is applicable to the facts of the present case.

Merely because the writings of different persons, there is no question for sending the document to Forensic Department for comparison. The learned counsel for the petitioner relied on the decision of unreported judgment in Crl. R.C. No. 694 of 2013, wherein, it was held that once the document is alleged to be a forged one, it is the duty of the Court to give an opportunity to the defence/accused to put forth his defence. There is no quarrel over the proposition laid down in the citation. But, the above decision is not applicable to the facts of the present case. In that citation, Ex.A5 to A8 have been marked, in which the signature was forged and after the questioning of 313 of Cr.P.C., the accused filed an application to send the instruments to Forensic Department for comparison. In such circumstances, the learned single Judge of this Court, after considering the Apex Court reported in T. Nagappa Vs. Y.R. Muralidhar, , allowed the revision. But, the above decision is not applicable to facts of the present case. In the present case, the case of the defence is that the signature is admitted one, whereas, the writings are different. Therefore, no purpose will be served, if the document is sent for Forensic Department. Hence, I am of the view that the application has been filed to drag on the proceedings and so, I do not find any reason to interfere with the impugned order and it is hereby confirmed.

In fine, the criminal revision is dismissed and the impugned order dated 11.04.2008 passed in Crl.M.P.No. 316 of 2008 in S.T.C.No. 2880 of 2007 by the learned Judicial Magistrate No. 4, Tirunelveli, is hereby confirmed.

Since the case in S.T.C.No. 2880 of 2007 is of the year 2007, the learned Judicial Magistrate No. 4, Tirunelveli, is directed to dispose of the case in S.T.C.No. 2880 of 2007, within a period of one month from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed.