Kalyanaraman vs K.S. Janakiraman

G.M. Akbar Ali, J.—This petition is filed u/s 482 of Cr.P.C., to set aside the order, dated 15.06.2009, passed by the learned Principal

District Judge, Madurai, in an unnumbered revision against the order in Crl.M.P. No. 3702 of 2005 in S.T.C. No. 72 of 2005, on the file of the

learned Judicial Magistrate No. VI, Madurai, dated 24.10.2008.

The petitioner is the accused in S.T.C. No. 72 of 2005 in a private complaint filed by the respondent u/s 138 of the Negotiable Instrument Act.

The said case was taken on file and it is pending. The allegation as against the petitioner is that the petitioner had given a cheque for a sum of Rs.

1,00,000/-, which has bounced and therefore, a complaint was given u/s 138 of the Negotiable Instrument Act. Pending trial, the petitioner had

filed Crl.M.P. No. 3702 of 2005, u/s 45 of the Indian Evidence Act, to forward the disputed cheque for examination by an handwriting expert.

The allegation of the petitioner is that he had given a blank cheque to the complainant as security for a loan obtained by one Rangasamy.

According to the petitioner, the said Rangasamy, had repaid the amount but the complainant had not returned the blank cheque given by the

petitioner for security. He further submitted that as cheque was filled up by the complainant, it has to be subjected for the opinion of handwriting

expert.

The Crl.M.P. No. 3702 of 2005 was contested and the learned Magistrate has dismissed the petition as it is only a delaying tactics to protract

the proceedings. Against that order, the petitioner had preferred a revision and the learned Principal Sessions Judge, even before taking up the

matter as a revision, had discussed the maintainability of the petition and has dismissed as the revision will not lie. Against which, the petitioner has

come forward before this Court, to set aside the order of the learned Principal Sessions Judge in an unnumbered revision.

The learned Counsel for the petitioner would submit that against the order passed by the learned Judicial Magistrate, a revision lies before the

Principal Sessions Judge. The learned Principal Sessions Judge has dismissed the revision without going into the merits of the case. The only

question considered by the learned Principal Sessions Judge is whether the order passed in Crl.M.P. 3702 of 2005, is an interlocutory order or

final order and the learned Sessions Judge had found as follows:

But in the case on hand, the petition has been filed to send the document for expert opinion. The dismissal of this petition is not culminating the

proceeding. It is still pending. So, the order passed by the Judicial Magistrate is only an interlocutory order. No revision lies against this order.

Hence, the revision is not maintainable.

Aggrieved by the said finding, the petitioner has preferred the present application u/s 482 of Cr.P.C. to set aside the said order dated

15.06.2009.

It is very useful to extract Section 397 of Cr.P.C., which reads as follows:

Calling for records to exercise powers of revision (1) The High Court or any Sessions Judge may call for and examine the record of any

proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the

correctness, legality or propriety of any finding. Sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior

Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in

confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation - All Magistrate, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior

to the Sessions Judge for the purposes of this sub-section and of Section 398.

(2) The powers of revision conferred by Sub-section (I) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry,

trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by

the same person shall be entertained by the other of them.

If the order passed is an interlocutory order, the revision is not sustainable u/s 397(2) of Cr.P.C. The Crl.M.P. No. 3702/2005 was filed u/s 45

of the Indian Evidence Act, to forward Ex.A1 for handwriting expert. The impugned cheque is alleged to have been issued by the petitioner based

on which, a complaint u/s 138 of Negotiable Instrument Act is given by the holder. The main defence is that a blank cheque was given as security

for another person''s debt and even though the debt was cleared, the holder had filled up the cheque and has instituted a complaint. The main

contention of the petitioner is that if the cheque has sent for handwriting expert, it could be proved that the writings are made by the complaint and

not by the accused. The learned Judicial Magistrate dismissed the application stating that there is a legal presumption available u/s 139 of NIA and

the petitioner/accused has to prove that he had discharged the debt and even if the expert opinion is obtained, it will not help the court to decide

the issue involved. The learned Sessions Judge has dismissed the application on maintainability.

In the judgment reported in Amar Nath and Others Vs. State of Haryana and Another, it has been held as follows:

interlocutory order merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities

of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an

interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the

basis for insertion of this particular provision in Section 397"". The Supreme Court further held that ""for instance, orders summoning witnesses,

adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to

interlocutory orders against Section 397(2). But orders which are matters of moment and which affect or adjudicate the rights of the accused or a

particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.

Therefore, the distinction is, any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said

to be an interlocutory order so as to bar a revision to the High Court against that order.

Secondly, orders which are matters of moment and which affects the rights of the accused or a particular aspect of the trial Court cannot be

said to be an interlocutory order.

The accused has filed an application u/s 45 of the Indian Evidence Act, to send the impugned cheque for the opinion of the handwriting expert

u/s 139 of Negotiable Instruments Act. It is regrettably presumed that the holder of the cheque received the cheque of the nature referred to in

Section 138 of the Negotiable Instruments Act.

An order passed in an application filed u/s 45 of the Indian Evidence Act decides the right of the accused and therefore, it cannot be said to be

an interlocutory order so as to bar a revision u/s 397(2) of the Code.

Therefore, the learned Sessions Judge is wrong in holding that the order passed in Crl.M.P. 3702 of 2005 is an interlocutory order against

which no revision would lie u/s 397(2) of Cr.P.c.

The learned Magistrate has dismissed the application stating that there is no necessity to subject the impugned cheque for the opinion of the

handwriting expert, as the opinion would be irrelevant to decide the issue on hand. The defence taken by the petitioner/accused is that he had given

the impugned cheque as security for the repayment of loan by a third party to the complainant, the third party had already discharged his liability,

but instead of returning the cheque, the complainant had filled up the same and has filed a complaint u/s 138 of NIA. To substantiate his point, the

petitioner wanted to subject the cheque to prove that the cheque was filled up by the complainant. u/s 118 of the Negotiable Instruments Act, the

consideration, the debt, time of acceptance are presumed until the contrary is proved, has rightly pointed out by the leaned Magistrate. Even if the

cheque is found to be filled, the debt is to be presumed until the accused disprove the consideration. Therefore, the opinion of the handwriting

expert will be irrelevant.

Therefore, there is no irregularity on the part of the leaned Magistrate in dismissing the application filed by the petitioner u/s 45 of the Indian

Evidence Act in Crl.M.P. 3702 of 2005 and it does not require the interference of this Court u/s 482 of Cr.P.C. Hence, this petition is dismissed.