P. Rajendran v. K.K.Palanisamy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 1.07.2009CORAM:THE HONOURABLE MR.JUSTICE C.S.KARNANCrl.O.P.No. 16190 of 2007P. Rajendran.. PetitionerVersusK.K.Palanisamy.. Respondent Petition filed under Section 482 Cr.P.C to set aside the orderof the Judicial Magistrate No.VIII, Coimbatore, made in Crl.M.P.No.1599 of 2006 in C.C.No.241 of 2004 on 08.09.2006, which was confirmedby the Additional District and Sessions Judge, Fast Track CourtNo.II, Coimbatore, in Crl.R.P.No.90 of 2006 dated 02.11.2006 andallow the Criminal Original Petition.For Petitioner : M/s. S.K.Krishnamurthy (No appearance)For Respondent : No appearanceO R D E RThe petitioner has filed this Criminal Original Petition to setaside the order of the learned Judicial Magistrate No.VIII,Coimbatore, passed in Crl.M.P.No.1599 of 2006 in C.C.No.241 of 2004on 08.09.2006, which was confirmed by the Additional District andSessions Judge, Fast Track Court Judge, Coimbatore, in Crl.R.P.No.90of 2006 on 02.11.2006.2.It is averred by the petitioner that in the CriminalMiscellaneous Petition No.483 of 2005, filed by him, the learnedMagistrate appointed a Commissioner to hand over a cheque to forensicdepartment for signature verification as the signature found in hischeque was not that of the petitioner; that the trial Court granted amonth's time to deposit the Commissioner's and Expert's fees. It isthe further averment of the petitioner that due to loss in hisbusiness, he was not able to deposit the fees in the trial Court andhence the trial Court closed his petition. The petitioner filed anapplication to reopen the petition and the trial Court did notconsider it. Hence, the petitioner filed Crl.R.P.No.90 of 2006before the Additional District and Sessions Judge, Fast Track CourtNo.II, Coimbatore. The appellate Court dismissed the Revision https://hcservices.ecourts.gov.in/hcservices/ Petition stating that the Court had ample power to verify thesignature and the petitioner alone is dragging the case.3.The grievance of the petitioner is that before the trialCourt, he raised an objection that the cheque was not signed by himand hence he filed a petition for sending the cheque to the expertfor signature analysis. Since the petitioner was not able to depositthe fees on time, the petition was closed. The petitioner furtherstates that a vital point raised by him which is in his favour wascurtailed by the Courts below and this is against the cannons ofhuman justice. Hence, he prays for setting aside the order of theCourt below by way of this petition.4.When the matter was taken up, the counsel on both sideswere absent and the matter was posted for orders.5.From the averments contained in the affidavit of thepetitioner, it is seen that, in C.C.No.241 of 2004 on the file of theJudicial Magistrate, No.VIII of Coimbatore, after the commencement ofthe examination of the prosecution witnesses, the petitioner haspreferred the Crl.R.P.No.90 of 2006 before the Appellate Court. Itis observed by the Appellate Court that even though the petitionerwas directed to deposit the expert fees pursuant to the order dated07.04.2005, such deposit was not made by the petitioner inspite ofmany opportunities having been given to him for this purpose, that asper the evidence side, the Court has got power to verify thesignatures and the experts opinion need not be considered as finaland if at all the experts evidence is taken, it can be consideredonly as an additional evidence in the case and hence the order of thetrial Court need not be interfered with and I accordingly confirm thesame.6.I have gone through the materials available before me inthis Criminal Original Petition. When the petitioner herein, hasspecifically made an allegation that the signature found in thecheque is not his, it is a valid defence on his side and to provesuch an allegation, the petitioner has wanted the trial Court to sendthe cheque to the expert for his opinion as to the genuineness of thesignature found thereon. The trial Court has considered this requestand asked the petitioner to deposit the requisite fees for sendingthe cheque to the experts for his opinion through a Commissionerappointed by the trial Court. The petitioner states that there wasloss in his business and because of that he was not able to depositthe fees as ordered by the trial Court. Even though, the trial Courtclosed the petition as the amount was not paid on time, thepetitioner has pursued his request by way of an application filed byhim and when it was rejected by the trial Court, he has preferred theCriminal Revision Petition before the Appellate Court. Even thoughthe Appellate Court has observed that Courts have power to verify the https://hcservices.ecourts.gov.in/hcservices/ signatures, the Court cannot assume the role of an expert and anyopinion arrived at by the Court itself comparing the signature cannotbe said to be conclusive in nature. Had the petitioner been givenfurther time for deposit of fees and had the cheque been sent to theexpert, the opinion of the expert would be available for perusal bythe Court and his evidence also will prove whether the signaturefound in the cheque is genuine or not. Refusal of such opportunityto the petitioner is definitely prejudicial to him.7.The trial Court granted fruitful order to the petitioneri.e., an appointment of an Advocate Commissioner and through him thedisputed cheque to be sent to the forensic department for signatureverification. The fruitful order granted by the learned Magistratewas with the condition that the petitioner should deposit the expertfees within one month, ie., from 16.06.2006 to 14.07.2006, to theAdvocate Commissioner. This was not complied with by the petitionerwithin stipulated period as per court order. Hence, the petition wasclosed. Subsequently, the petitioner filed reopen petition statingthat due to financial problems, he was not able to pay the amount.Further, he was categorically stated that he is a poor person. Thesereasons should be considered by the trial Court. Further, aftergetting expert opinion, the trial Court can render proper justice tothe parties concerned without any lacuna. Just because thepetitioner was not able to comply with the conditions in the fruitfulorder, the benefits from such an order should not be denied to him.The expert opinion might prove to be useful to the court to giveproper justice. This would also serve as an additional opportunityto the petitioner and which is also not prejudicial to the oppositeparty.8.In this view of the matter, the Criminal Original Petitionis allowed. The order passed by the Courts below are set aside. Thetrial Court is directed to grant further reasonable time to thepetitioner to deposit the expert fees and proceed with the case inaccordance with law. As the case is of the year 2004, the trialCourt shall try to dispose of the matter within a period of sixmonths from the date of receipt of a copy of the order by it. Sd/- Asst.Registrar/true copy/ Sub Asst.Registrarmra https://hcservices.ecourts.gov.in/hcservices/ To1. The Judicial Magistrate No.VIII, Coimbatore.2. The Additional District and Sessions Judge, Fast Track Court No.II, Coimbatore.3. The Public Prosecutor, High Court, Madras Crl.O.P.No. 16190 of 2007MS {CO}TP/14.7.2009.