P. Palanichamy vs Karuppaiah

Honourable Mr. Justice M. Venugopal

The Revision Petitioner/Accused has focused the instant Criminal Revision Petition as against the order dated 15/2/2010 in Cr. M.P. No. 815 of 2010 in S.T.C. No. 5357 of 2009 passed by the Learned Judicial Magistrate No. II, Srivilliputhur. The Learned Judicial Magistrate No. II, Srivilliputhur, while passing the impugned order in Cr. M.P. No. 815 of 2010 in S.T.C. No. 5357 of 2009 on 15/2/2010 has among other things observed that the Petitioner/Accused in the petition has not stated about the document with which a comparison can be made in regard to Ex. P.3 Cheque and Ex. P.2 Twenty Rupees Stamp Paper Document and also further opined that for the purpose of comparison, if a signature is obtained from him, now, there is a possibility of Petitioner deliberately affixing his signature differently. Furthermore, it is the observation of the Learned Magistrate that when the Petitioner/Accused has been questioned u/s 313 of Cr. P.C., at that point of time, he has not denied his signature in the cheque, etc.

The Learned Counsel for the Petitioner/Accused contends that the trial Court has committed an error in dismissing the Cr. M.P. 815 of 2010 based on the reason that the said Petition has been filed only to protract the proceedings.

According to the Learned Counsel for the Petitioner/Accused, Cr. M.P. No. 815 of 2010 has been filed by the Revision Petitioner before the trial Court at the appropriate stage of the trial of the case i.e., after examination of the witnesses.

It is the further submission of the Learned Counsel for the Petitioner/Accused that during the cross-examination, specific questions disputing the signature have been put to the Respondent/Complainant.

The strenuous plea taken on behalf of the Petitioner/Accused is that the Petitioner/Accused in Law is entitled to rebut the statutory presumption and a fair opportunity ought to have been provided by the trial Court to the Petitioner/Accused to prove his innocence.

Advancing his arguments, the Learned Counsel for the Petitioner/accused projects a plea that just because in T.O.P. No. 1698 of 2009, an order has been passed by the trial Court on 10/10/2009 to dispose of the main S.T.C. No. 5357 of 2009 within a period of three months, the same is not a genuine and a reasonable ground to deprive a fair opportunity of hearing to the Petitioner/Accused.

The Learned Counsel for the Petitioner/Accused contends that the Petitioner/Accused is now prepared to produce his admitted signatures in any previous documents for comparison with the disputed signatures in Ex. P.2 and Ex. P.3.

Lastly, it is the submission of the Learned Counsel for the Petitioner/Accused that the Petitioner/Accused has disputed the very issuance of the cheque as well as his signatures in the stamp document which have been introduced to prove the consideration and therefore, it is just and necessary that only a proper examination and opinion of the Expert, the veracity of the signatures would be proved before the Court of Law, in the manner known to Law.

At this stage, it is seen from the perusal of the contents of the affidavit in Cr. M.P. No. 815 of 2010 filed by the Petitioner/Accused before the trial Court u/s 45 of the Indian Evidence Act, 1872 that the Petitioner/Accused has categorically denied that the signature seen in the cheque does not belong to him and further that the Respondent/Complainant has wrongly taken the cheque and has filled up as if the Petitioner/Accused has received money from him and also filled up his signature and sent it for collection by affixing the Petitioner/accused signature. Also in the Petition, the Petitioner/Accused has averred that he has not at any period and point of time has given the cheque to the Respondent/Accused or Twenty Rupees Document by affixing his signature. Furthermore, there is a difference in his signature seen in the driving licence and that of his signature seen in the cheque. Therefore, he has requested the trial Court to send Ex. P.3 Cheque and Ex. P.2 Twenty Rupees Stamp Paper for obtaining an expert opinion.

In the counter filed by the Respondent/Accused to Cr. M.P. No. 815 of 2010, the Respondent/Accused has taken a stand that Cr. M.P., is not maintainable and further that the Petitioner/Accused has not specified the document in and by which the comparison of his signature can be made by an expert by comparing with the same with Ex. P.2 and Ex. P.3. Added further, only with a view to protract the proceedings of the main case, the Petitioner/Accused has filed Cr. M.P.

It is to be pointed out that the presumption u/s 138 of the Negotiable Instruments Act, 1881 is a rebuttable one. The burden of proving that Ex. P.3 Cheque has not been issued for a debt or liability is on the Petitioner/Accused, as opined by this Court. As a matter of fact, ''Drawer'' has to prove in the trial by adducing cogent and coherent evidence in this regard.

As per Section 118 of the Negotiable Instruments Act, there is a presumption in Law that the instrument is supported by consideration. The onus lies on the Accused/Defendant to prove what is apparent on the document is not a true one. If the execution of promissory note is admitted, then the presumption u/s 118(A) of the Negotiable Instruments Act arises. The said presumption is a rebuttable one either by means of circumstantial evidence or presumption of fact draw as per Section 114 of the Indian Evidence Act. Indeed, Section 139 of the Negotiable Instruments Act, visualises an early presumption in favour of the complainant, unless the contrary is established.

The ingredients of Sections 138 and 139 of the Negotiable Instruments Act are in consonance with the definition found in Section 4 of the Indian Evidence Act, 1872, which speaks of ''Presumption of Fact''.

It is to be borne in mind that the ingredients of Section 20 of the Negotiable Instruments Act would not be attracted either as a matter of routine or automatically. However, these are all matters of evidence to be adduced by the parties before the trial Court. Before coming to the conclusion as to the application of Section 20 r/w. Section 118 of the Negotiable Instruments Act, no wonder, the burden of proof should be applied in a proper manner.

It is true that the opinion of a Handwriting Expert is a relevant factor and the same is admissible in evidence. The opinion offered by an Expert as per Section 45 of the Indian Evidence Act is to be proved as a relevant one. In fact, it is the duty of a Court of Law to find out whether any prima facie/genuine case made out by a party in seeking the aid of Law for obtaining an opinion of an Expert in order to send the cheque either for ascertaining the age of the ink in signature or in respect of other contents of the cheque.

Undoubtedly, Section 243 of Code of Criminal Procedure, provides a valuable right to the Petitioner/Accused to examine defence witnesses. If the Petitioner/Accused decides/desires to examine an Expert and to obtain his opinion in a given matter in issue, then, it is open to him to examine the said Expert in accordance with law. However, the said valuable right must not be exercised by the Petitioner/Accused in a vexatious or in a frivolous manner or solely with a view to procrastinate the pending proceedings or to defend the ends of Justice.

One cannot brush aside an important fact that if an Expert submits his report and deposes in evidence, the same will have to be looked into by the trial Court along with other available oral and documentary evidence on record at the time of disposal of the main case. There is no two opinion of the fact that inbuilt safeguard provided as per Section 243 of Cr. P.C., is a valuable right given to the Accused in the acquisitorial proceedings in our Criminal Justice System.

Be that as it may, in the present case on hand, the Petitioner/Accused in paragraph 4 of the averment in Cr. M.P. No. 815 of 2010 (before the trial Court) has inter alia stated that the signature seen in the cheque, in the aforesaid case, does not belong to him and that the said cheque has been taken wrongly by the Respondent/Complainant. Further, the Respondent/Complainant has filled up the cheque as if the Petitioner/Accused has taken money from him and also sent it for collection by filling up his signature.

In this connection, it is to be pointed out that in commercial practice, a cheque is seen as a payment if a Creditor accepts the same instead of the monetary sum. Continuing further, as per Section 20 of the Negotiable Instruments Act, a person is authorised to complete the inchoate instrument delivered to him by filling up the blanks. The said statutory right is coupled with interest. Even an inchoate stamp cannot be rejected on the basis that as per Section 93 of the Indian Evidence Act filing up of a blank is impermissible. A blank cheque can be filled up by the Holder thereof, which will be a valid instrument in the eye of Law. Also, the words ''may presume'' as per Section 4 of the Indian Evidence Act, specified that whatever it is provided by the said Act, the Court of Law may presume the fact.

Apart from the above, in the instant case, the Petitioner/Accused in paragraph 4 of the affidavit in Cr. M.P. No. 815 of 2010 has averred that the Respondent/Complainant has taken the cheque wrongly. If that be the case, the natural conduct of the Petitioner/Accused ought to have intimated his Banker at once or within a reasonable period of time by issuing Stop Payment instructions. Obviously, the Petitioner/Accused has not resorted to such a course. The inaction of the Petitioner/Accused in this regard is certainly an adverse circumstance against him.

Another important aspect to be borne in mind by this Court is that the Petitioner/Accused when he has been questioned u/s 313 of Cr. P.C., before the trial Court has not denied that the signature seen in the cheque does not belong to him. Also, he has stated before the trial Court that he has nothing to say about the case (during his 313 Cr. P.C., examination). Suffice it for this Court to aptly point out that only at the fag end of the proceedings, the Petitioner/Accused has chosen to project Cr. M.P. No. 815 of 2010 before the trial Court and that too only on 5/2/2010 with a view to prolong the pending main case (when already a direction has been issued by the District Court in T.O.P. No. 1698 of 2009 on 10/10/2009 to dispose of the main S.T.C. case No. 5357 of 2009 within a period of three months, etc). Looking at from any angle, the Criminal Revision Petition is devoid of merits and the same fails. In the result, the Criminal Revision Petition is dismissed. Consequently, the order passed by the Learned Judicial Magistrate No. II, Srivilliputhur in Cr. M.P. No. 815 of 2010 in S.T.C. No. 5357 of 2009 dated 15/2/2010 is confirmed by this Court, for the reasons assigned in this Revision.

Consequently, the connected Miscellaneous Petition No.1 of 2010 is also dismissed.