Rajendran vs Usharanai

M. Karpagavinayagam, J.—Rajendran, the Petitioner herein has filed this petition u/s 482 Code of Criminal Procedure for directing the trial

Court to send the cheque dated 3.11.1997 to handwriting expert to give the opinion with regard to the age of the signature, age of the date and

age of the writings filed up in the cheque.

The facts leading to the filing of this petition are as follows:

(a) The complainant, the Respondent herein filed a complaint u/s 138 of the Negotiable Instruments Act against the Petitioner and the same was

taken on file on 3.3.1998. The evidence for the prosecution was completed on 29.4.1998. After questioning, the case was posted for defence on

15.5.1998. Defence witnesses, viz., D.Ws.1 to 4 were examined and Exs. D1 and D2 were marked. The case was periodically adjourned.

Finally, the case was posted on 19.2.1999 for further examination of defence witnesses. At that stage, the Petitioner/accused filed an application

requesting the court to send the cheque in question to the handwriting expert to get the opinion regarding the age of the writings signature found in

the cheque.

(b) According to the Petitioner, he issued the cheque in question to the husband of the complainant in 1995. However, he discharged the said

amount under Ex.D1. He was not able to get back the cheque since the complainant''s husband suddenly died. After his death, the cheque was

filed up as if it was issued on 3.11.1997 and a false case has been filed by the complainant, the Respondent herein, except the signature of the

Petitioner and the amount in figure and in words, all other words were filed up by the complainant. So, projecting his case in this way, the

Petitioner/accused filed an application to send the cheque in question to the handwriting expert in order to find out the age of the signature of the

accused and other writings.

(c) The said application was dismissed by the trial Court holding that the application was filed without any merit in order to drag on the

proceedings and to harass the complainant. The Petitioner filed a revision as against the said order before the Sessions Court which, in turn,

dismissed the same confirming the order of the trial Court. Hence, the petition u/s 482 Code of Criminal Procedure.

At the outset, I shall mention that the petition u/s 482 Code of Criminal Procedure is not maintainable against the order passed in revision by the

Sessions Court as it amounts to second revision, as held in Swamidurai v. Rajalakshmi 1999 1 L.W. (Cri) 221. Consequently, this petition is liable

to be dismissed as not maintainable.

Even as regards merits, I do not find force in the contention of the counsel for the Petitioner. If the case projected by the accused in the

application is true, the same would have been mentioned by way of reply to the statutory notice issued by the complainant to the accused.

Admittedly, there was no reply even though the notice was received by the accused.

When P.W. 1 was examined, the case projected by the accused by putting suggestion to P.W. 1 was that the accused after signing the cheque

handed over the same to the complainant and the complainant filed up the blanks and filed a false case. Now, after examination of D.Ws.1 and 2

as defence witnesses, the Petitioner has come forward with a new case by filing an application that he had issued a cheque only to the husband of

the complainant by putting signature and also by mentioning the amount of Rs. 20,000/- in figure and words. This new case has been belatedly

introduced, since D.W. 1 would admit that the cheque was issued in the year 1995. Taking advantage of this admission, the Petitioner filed an

application to send the document for opinion regarding the age of the writings and signature. This is, in my view, nothing but to abuse of process of

Court.

Even assuming that the cheque was filed up by some other person, once execution is admitted, it shall be taken that the cheque was issued by

the accused in favour of the complainant towards the discharge of the liability. No law provides that in case of any negotiable instrument, entire

body has to be written by maker or drawer only. What is material is signature of drawer or maker and not the body writing. Hence, question of

body writing has no significance. This has been laid down by the Gujarat High Court in Satish Jayantilal Shah Vs. State of Gujarat, .

The learned Counsel for the Petitioner would cite the decision in Mohanlal Shamji Soni Vs. Union of India and another, to show that the

accused is entitled to fair and reasonable opportunity to rebut the evidence brought on record against him.

As a matter of fact, ample opportunity has been given to the Petitioner to cross-examine the witnesses produced by the prosecution as well as

for the production of the witnesses on the side of defence and to make the defence documents. As correctly pointed out by the trial Court as well

as the revisional Court, the application has been filed only in order to drag on the proceedings. By way of abusing the process of Court, the said

application before the trial Court, then revision before the Sessions Court and now this petition before this Court have been filed.

In my view, the conduct of the Petitioner in abusing the process of Court is to be highly condemned. Therefore, while dismissing the petition, I

am of the view that suitable costs to be imposed on the Petitioner. As such, the Petitioner is directed to pay Rs. 2,500/- (Rupees Two thousand

and five hundred only) as costs to the Respondent within one month from this date. The trail Court is also directed to take up the matter by giving

top priority, continue the trial and dispose of the same without any further delay. Consequently, Crl.M.P. Nos. 8739 and 8740 of 1999 are also

dismissed.