T. Kuppusamy vs Thangavel

T.S. Sivagnanam, J.—This Revision filed under Section 397 read with 401 Cr.P.C., is directed against the order dated 22.12.2008 in C.M.P.No.5 of 2008 in C.A.No.161 of 2007 on the file of I Additional District Judge, Salem, dismissing the petition filed by the petitioner under Section 45 of the Evidence Act and Section 391 Cr.P.C., in the pending criminal appeal.

The petitioner is the accused and as against the conviction under Section 138 of the Negotiable Instruments Act in C.C.No.652 of 2005 on the file of the Judicial Magistrate No.5, Salem dated 03.10.2007, the petitioner preferred appeal in C.A.No.161/2007 on the file of I Additional District Judge, Salem. During the pendency of the appeal, the petitioner filed a petition under Section 45 of the Evidence Act read with Section 391 Cr.P.C., to send to the Forensic Sciences Department the counterfoil of the cheque book marked as Ex.P.1, in which the signature of P.W.2  Subramani is found for a comparison along with admitted signature in the Court records.

The Court below dismissed the petition, by the impugned order and challenging the same, the present revision has been filed.

Heard Mr.K.Selvakumarasami, learned counsel for the petitioner and Mr.R.Nalliyappan, learned counsel for the respondent.

The petitioner/accused suffered an order of conviction in connection with offence under Section 138 of the Negotiable Instruments Act and as against the conviction, he has filed appeal. During the pendency, petition under Section 45 of the Evidence read with Section 391 Cr.P.C., was filed to send the counterfoil of the cheque book, which is marked as Ex.B.1 to the Forensic Sciences Department for the purpose of examining the signature of P.W.2 found in the counterfoil with that of the admitted signature.

The Court below found that the petitioner/accused did not disclose the fact that he obtained the signature of P.W.2 in Ex.D.1, counterfoil either before the police or to the learned Judicial Magistrate in his private complaint and no reasons were assigned for not disclosing the same. Further the court below held that P.W.2-Subramani has stated that he neither advanced any money, much less the alleged money of Rs.20,000/- to the accused nor received any cheque from him. He had further deposed before the trial court that the accused insisted through P.W.2 to give false evidence and he has lodged a complaint before the Ammapettai Police Station and since he has failed to concede to the demands of the petitioner/accused, false case has been lodged against him in C.C.No.67 of 2007.

The Court below further held that the accused ought to have filed a memo with such a prayer before the lower court and having not made such an attempt, now in order to fill up the lacuna, taking assistance of the expert opinion; even experts opinion is not a conclusive proof and it is nothing but an attempt to drag on the proceedings.

The contention of the petitioner is that the blank cheque alleged to have been owned by P.W.1 is misused by P.W.1 and P.W.2 and there is no link between the petitioner and P.W.1; P.W.2 is a person who instigated P.W.1 to file a case against the petitioner. It is the specific case of the petitioner that he borrowed Rs.20,000/- from P.W.1 and repaid the said amount to P.W.2, but failed to get back the blank cheques and that P.W.2 signed his name in the counterfoil and the alleged cheque, but P.W.1 denied his signature during evidence. The petitioner submits that he has marked the counterfoil as Ex.D.1 and it contains the signature of P.W.2 and the petitioner was examined as defence witness as D.W.1 and the trial court failed to appreciate these facts. Therefore it is submitted that in order to prove his defence, the petitioner filed the said application to send the document for examination of handwriting expert.

In this regard, the learned counsel referred to the evidence of D.W.1, wherein, he had stated that he had no means to give any loan to the complainant and he does not have any such source of income.

Learned counsel appearing for the respondent submitted that the prayer sought for by the petitioner during the pendency of the appeal was rightly rejected by the court below and there are absolutely no merits in the contentions raised and the impugned order is perfectly justified and does not call for any interference.

After hearing the learned counsel for the parties and a perusal of the materials placed on record, it is evidently clear that the petitioner has failed to avail the opportunity and exercise his rights at the appropriate time. Having suffered an order of conviction, which is based upon oral and documentary evidence, passed by the trial court, the petitioner preferred appeal. When the appeal was about to be heard and disposed of, the petitioner filed petition under Section 45 of the Evidence Act read with Section 391 Cr.p.C., seeking to send the already exhibited document to Forensic Department for examination. The application was rightly rejected by the court below as it may amount to filling up the gaps since the application has been filed at the appellate stage after the trial is over and the parties have adduced oral and documentary evidence. If the case of the petitioner is that the signature in the counter foil is so very relevant and the document is having been already exhibited, it is always open to the petitioner to raise such a contention before the Appellate Court in the pending appeal and it is a settled legal position that an appeal is a continuation of the legal proceedings and in the First Appeal, the lower appellate court has jurisdiction to re-appreciate the oral and documentary evidence placed before the trial court. Therefore, this Court is of the view that the petition filed by the petitioner/accused at the appellate stage is only with an intention to drag on the matter. Hence, no interference is called for to disturb the findings of the court below. At the time of argument of the appeal, it is open to the petitioner to raise all contentions and request the lower appellate court to re-appreciate the evidence, which is already on record.

The Criminal Revision case is dismissed with the above observation. Consequently, connected MP is closed.