Praveen Singh vs State of U.P. and Another

S.C. Agarwal, J.—This writ petition has been filed with a prayer for issuing a writ, order or direction in the nature of certiorari quashing the impugned order dated 6th August, 2010 passed by Addl. Sessions Judge XVth, Kanpur Nagar (Annexure No. 6) in Criminal appeal No. 4 of 2010, whereby application u/s 391, Code of Criminal Procedure moved by the Petitioner-Appellant for additional evidence was rejected.

In brief, the facts are that Respondent No. 2 M/s A.J. Poultry filed criminal complaint No. 171 of 2006 in the Court of A.C.M.M. Ist, Kanpur Nagar against the Petitioner u/s 138 of the Negotiable Instruments Act alleging therein that the Petitioner purchased poultry feed worth Rs. 1,43000/- on 10.7.2003 and worth Rs. 4600/- on 2.9.2003 from opposite party No. 2 and gave a cheque No. 011621, dated 25.5.2005 of I.D.B.I. Bank, branch M.G. Road, Kanpur Nagar to the complainant. The cheque was presented in the bank on 21.11.2005 at ICICI Bank, Kanpur Nagar but the cheque was dishonored with the endorsement "Account Closed". A notice was issued by the complainant to the Petitioner on 28.11.2005, which was received by him on 30.11.2005, but despite notice, the amount was not paid. The case was subsequently transferred to the court of C.J.M., Kanpur Nagar where a new number was allotted. After trial, C.J.M. Kanpur Nagar, vide judgment and order dated 11.1.2010 convicted the Petitioner u/s 138 of the Negotiable Instruments Act and sentenced him to undergo imprisonment for one year with fine of Rs. 2,95,000/- and in default to undergo further simple imprisonment for a period of three months. It was further directed that even after undergoing further sentence in default of payment of fine, the fine shall be recovered from the Petitioner.

Against the aforesaid judgment of conviction, the Petitioner filed a criminal appeal No. 4 of 2010, which is pending in the Court of Addl. Sessions Judge, Court No. 15, Kanpur Nagar. During pendency of appeal an application 14-kha was moved by the Petitioner u/s 391, Code of Criminal Procedure for getting the alleged signatures of the Petitioner on the disputed cheque compared through Bank Manager and hand writing expert on the ground that the cheque was alleged to have been issued by the accused on 22.5.2005 whereas the cheque was not issued by the accused nor it bears signatures. During defence evidence, the counsel of the accused had moved an application before the Court for verification of the signatures of the accused from the Bank Manager and, therefore, before the hearing of appeal it was necessary that signatures on the cheque be got compared through Bank Manager and a hand writing expert.

The application u/s 391, Code of Criminal Procedure was rejected by learned Addl. Sessions Judge on the ground that no such application was moved by the accused before the trial court. The application was moved before the trial court simply to summon the ledger from the bank to show that account had already been closed but no application for comparison of signatures through Bank Manager or hand writing expert was moved before the Magistrate. Starting from 26th June, 2008 and upto 28.4.2009 in all, 17 dates were fixed by the Magistrate for defence evidence but the opportunity was not availed by the accused and, therefore, no sufficient ground to invoke Section 391, Code of Criminal Procedure arise. Consequently, application 14-kha was rejected. Hence this petition.

Heard Sri Shashank Tripathi, learned Counsel for the Petitioner, learned AGA for the State and Sri Arvind Agarwal, learned Counsel for opposite party No. 2.

Opposite party No. 2 has filed counter-affidavit but learned AGA has not chosen to file any counter-affidavit

Learned Counsel for the Petitioner does not wish to file any rejoinder affidavit. Learned Counsel for the Petitioner submitted that learned Addl. Sessions Judge was not justified in rejecting the application u/s 391, Code of Criminal Procedure specially when there was specific denial of the Petitioner that the cheque did not bear his signature and entire case was fabricated. The cheque was given by the Petitioner as security, which was misused by the complainant and Addl. Sessions Judge should have directed for sending the disputed cheque to hand writing expert for verification of signatures on the cheque.

Learned AGA and learned Counsel for Respondent No. 2 supported the impugned order and submitted that the cheque was issued by the Petitioner in connection with legally enforceable debt. 17 dates were fixed by the Magistrate for defence evidence but the Petitioner did not make any application before the Magistrate for comparison of his admitted signatures with the disputed signatures on the cheque and no such application was maintainable in the appellate court. It was also submitted that provisions of Section 391, Code of Criminal Procedure will apply only in case of additional evidence, which came to light subsequently but the provision cannot be used to create additional evidence, which was not available to the trial court.

Section 391, Code of Criminal Procedure provides:

Appellate Court may take further evidence or direct it to be taken.-

(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.

(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.

According to Section 391(1), Code of Criminal Procedure, the appellate court is entitled to take additional evidence, only if it thinks additional evidence to be necessary. In the facts and circumstances of the case, the Petitioner did not want to file any additional evidence but want to create new evidence merely on the ground that the disputed cheque does not bear his signatures. This submission of learned Counsel for the Petitioner is in direct conflict with his case narrated in para 10 of the writ petition, which is reproduced below:

that it is admitted that the Petitioner and complainant have business relations and Petitioner purchase the material of poultry in cash/credit facility and for this purpose Petitioner gave the cheque in dispute as security in lieu of credit facility but unfortunately complainant dishonestly use the security cheque for the alleged outstanding balance of year 2003. For kind perusal of Hon''ble Court the photo copy of bills are being filed herewith and marked as Annexure No. 7 to this writ petition.

From above averment in para 10 of the writ petition, the Petitioner admits that he had business relations with the Respondent No. 2 and for this purpose he gave a cheque to the complainant as security but the complainant dishonestly used the security cheque by presenting it in the bank. When there is a clear admission of the Petitioner that he had given the cheque to Respondent No. 2, it does not lie in his mouth to say subsequently that the cheque does not bear his signatures. It is also an admitted fact that the account from which cheque was issued has been closed. Whether the cheque was given as security or against the legally enforceable debt, has to be decided by learned Addl. Sessions Judge at the time of disposal of appeal. The Petitioner admits that cheque was issued by him to the complainant and, therefore, the plea that cheque does not bear his signatures is simply an afterthought on legal advise.

Learned Counsel for the Petitioner relied upon the decision of the Apex Court in Kalyani Baskar v. M.S. Sampornam JT 2007 1 77 wherein the Apex Court has held that where the accused denies his or her signatures on the cheque and moved an application u/s 243, Code of Criminal Procedure for sending the cheque in question for expert opinion, the same should have been allowed.

This decision is of no help to the Petitioner as during trial before the Magistrate, the Petitioner did not make any application u/s 243, Code of Criminal Procedure for sending the cheque to hand writing expert for verification of signatures, though sufficient opportunity was granted by the Magistrate to the Petitioner to lead defence evidence. Had such an application been moved before the Magistrate and the same having been rejected, it was open to the Petitioner to make a prayer u/s 391, Code of Criminal Procedure before the Appellate Court but since no such prayer was made by the Petitioner before the Magistrate, there was no occasion for moving such an application before the Sessions Judge.

During trial, the Petitioner moved an application before the Magistrate for summoning the ledger of the bank to show that the account had already been closed. This fact is evident from the order dated 4.5.2009 passed by the Magistrate rejecting the application (Annexure No. CA-1 ). For the first time, the Petitioner claimed before the appellate court that the cheque did not bear his signature and disputed cheque be got examined by Bank Manager and hand writing expert. The Petitioner had ample opportunity during trial to get his admitted signatures compared with the disputed signature on the cheque but despite sufficient opportunity being given by the Magistrate, no such prayer was made by him. In the Appellate Court, the Petitioner cannot claim a right to get the signatures compared through bank or hand writing expert as in para 10 of the writ petition, he himself has admitted that the cheque was given by him to Respondent No. 2. It has not been averred in the writ petition or before the trial court or the Appellate Court that he issued a blank cheque without signatures. Thus the application for getting the signatures compared with specimen signatures of the Petitioner was simply moved with a view to delay the disposal of appeal and the application u/s 391, Code of Criminal Procedure does not appear to be bona fide.

Having considered the submissions advanced by learned Counsel for the Petitioner, learned AGA and learned Counsel for Respondent No. 2 and also in view of the averment made in para 10 of the writ petition, I have come to the conclusion that application u/s 391, Code of Criminal Procedure filed by the Petitioner before the first Appellate court was not bona fide and was simply moved to create confusion and delay in disposal of appeal and the application has been rightly rejected by learned Addl. Sessions Judge.

The writ petition is devoid of merit and is accordingly dismissed.