Muniraj v. Velu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:3.7.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.289 of 2007Muniraj... Petitioner/Accusedvs.Velu... Respondent/Complainant Petition filed under Section 397 r/w 401 of Cr.P.C. against theorder dated 18.10.2006 passed by the Judicial Magistrate No.III,Vellore in Crl.M.P.No.3047 of 2006 in C.C.No.3 of 2002.For Petitioner : Mr.K.MariappanFor Respondent : No appearance O R D E R Animadverting upon the order dated 18.10.2006 passed by theJudicial Magistrate No.III, Vellore, this criminal revision case isfocussed.2. A 'resume' of facts which are absolutely necessary andgermane for the disposal of this criminal revision case would runthus:(a) The respondent herein filed the complaint in C.C.No.3 of2002 as against the revision petitioner herein for the offenceunder Section 138 of the Negotiable Instruments Act. Afterentering appearance in the said case, the revision petitionerherein/accused pleaded not guilty. Whereupon trial commenced andthe prosecution closed their side.(b) When the matter was posted for defence side, the revisionpetitioner/accused filed Crl.M.P.No.3047 of 2006 praying the Courtto send the impugned cheque to the hand writing expert to obtainthe opinion of the expert relating to the genuineness of thepurported signature of the accused. However, the Magistratedismissed the application. 3. Being aggrieved by and dis-satisfied with the said order,this revision is focussed on various grounds, the pith and marrowof them would run thus: https://hcservices.ecourts.gov.in/hcservices/ The lower Court ignoring the well settled proposition of lawthat the defence should be given due opportunity to prove thedefence plea, even by having a handwriting expert's assistance,dismissed the application filed by the revision petitioner/accused.4. At the hearing on the respondent's side there is norepresentation. The respondent also is called absent. However,the learned counsel for the revision petitioner would reiterate thegrounds of revision and pray for setting aside the order of thelower Court and for allowing the Crl.M.P.No.3047 of 2006.5. The point for consideration is as to whether there is anyperversity or non-application of law in disposing of the criminalM.P.6. The learned counsel for the revision petitionerappropriately and appositely cited the decision of the HonourableApex Court reported in JT 2007(1) SC 77 – KALYANI BASKAR V.M.S.SAMPORNAM, an excerpt from it would run thus: "12. Section 243(2) is clear that a Magistrate holding aninquiry under CrPC in respect of an offence triable by himdoes not exceed his powers under Section 243(2) if, in theinterest of justice, he directs to send the document forenabling the same to be compared by a handwriting expertbecause even in adopting this course, the purpose is toenable the Magistrate to compare the disputed signature orwriting with the admitted writing or signature of theaccused and to reach his own conclusion with the assistanceof the expert. The appellant is entitled to rebut the caseof the respondent and if the document viz. the cheque onwhich the respondent has relied upon for initiating criminalproceedings against the appellant would furnish goodmaterial for rebutting that case, the Magistrate havingdeclined to send the document for the examination andopinion of the handwriting expert has deprived the appellantof an opportunity of rebutting it. The appellant cannot beconvicted without an opportunity being given to her topresent her evidence and if it is denied to her, there is nofair trial. “Fair trial” includes fair and properopportunities allowed by law to prove her innocence.Adducing evidence in support of the defence is a valuableright. Denial of that right means denial of fair trial. Itis essential that rules of procedure designed to ensurejustice should be scrupulously followed, and the courtsshould be jealous in seeing that there is no breach of them.We have not been able to appreciate the view of the learnedJudge of the High Court that the petitioner has filedapplication under Section 243 CrPC without naming any personas witness or anything to be summoned, which are to be sentfor handwriting expert for examination. As noticed above, https://hcservices.ecourts.gov.in/hcservices/ Section 243(2) CrPC refers to a stage when the prosecutioncloses its evidence after examining the witnesses and theaccused has entered upon his defence. The appellant in thiscase requests for sending the cheque in question, for theopinion of the handwriting expert after the respondent hasclosed her evidence, the Magistrate should have granted sucha request unless he thinks that the object of the appellantis vexation or delaying the criminal proceedings. In thecircumstances, the order of the High Court impugned in thisappeal upholding the order of the Magistrate is erroneousand not sustainable."(emphasis supplied)7. A bare perusal of the above judgement would reveal that agenuine prayer of an accused should not be rejected simply becausethere is delay in making such prayer for taking the hand writingexpert's assistance. 8. In this case, the learned counsel for the revisionpetitioner would appropriately and correctly, appositely andconvincingly submit that from the beginning the revisionpetitioner/accused has been contending that the purported signatureof the accused is a forged one. No doubt, the lower Court advertedto the fact that for several years the accused kept quite. I amalso of the view that the accused could have been diligent enoughin filing that application. Nevertheless I am of the view that inas much as there are no prevaricative stands on the part of theaccused relating to his plea, one more opportunity could be givento him, stipulating certain conditions.9. Hence, the order dated 18.10.2006 passed by the JudicialMagistrate No.III, Vellore, in Crl.M.P.No.3047 of 2006 in C.C.No.3of 2002 is set aside, by allowing this criminal revision casesubject to the following terms and conditions:10. At the first instance, the petitioner/accused shall securebefore the Court his own one or two anti litem motum signatures, soto say his authentic signatures found in some public records within20 days from the date of receipt of copy of this order; whereupon,the lower Court shall appoint an Advocate Commissioner for thefollowing purpose.(a) To carry the relevant documents in connectionwith this case personally in a sealed cover;(b) and produce the same before the ForensicExpert;(c) leave it in his custody under hisacknowledgement for as many days as the Forensic Expertmay require; https://hcservices.ecourts.gov.in/hcservices/ (d) collect the record from the Forensic Expert onthe day as may be fixed by him;(e) bring it back and lodge it with the Court."The Forensic Expert is directed to complete the examination in anyevent, within 48 hours after the depositing of the same by theAdvocate Commissioner with him.11. The criminal revision case is allowed. Consequently,connected miscellaneous petitions are closed. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarmskTo1.The Judicial Magistrate No.III, Vellore2.-do- Thro' The Chief Judicial Magistrate, Vellore.+1 cc to Mr.K.Maraiappan, Advocate, SR.No.29050 Crl.R.C.No.289 of 2007KSK {CO}TP/14.7.2009.