Iqrar Ahmed vs Mohammed Sadiq

S.R. Waghmare, J.—This petition has been filed under Section 482 of the Cr.P.C. by the accused for quashment of the order dated 20.2.14 passed by the Sessions Judge, District Ujjain in Criminal Revision No. 255/13 dismissing the application of the accused petitioner under Section 45 of the Evidence Act.

Brief facts of the case are that the respondent non-applicant Mohammed Sadiq had extended a loan to the applicant petitioner Iqrar Ahmed and the cheque was issued in return of the amount taken by the accused and they have failed to pay the same as the cheque had bounced and a complaint was filed by the non-applicant Mohammed Sadiq before the JMFC Ujjain. During the proceedings the accused petitioner Iqrar Ahmed filed an application under Section 45 of the Evidence Act for calling of the handwriting expert for verification of the signatures on the registered A.D. The trial Court dismissed the application stating that the accused had not disputed the signatures on the cheque vide Ex.P/1; whereas he wanted to verify the signatures by handwriting expert regarding signatures on the registered A.D. card. And whereas the address was also not disputed by the accused and the trial Court had held that since the signatures on the cheque were not disputed and the address was not disputed, then the signatures on the registered A.D. card were not of much significance and it was also a matter of evidence. The Trial Court found that having examined the accused, he has himself given the address to be Khudiram Bos Marg Near Gudri Bazar, Ujjain; and even in the bail supplied the same address has been noted. Then the trial Court held that under the circumstances, as to who has received the A.D. card in receipt of the notice, is not much of consequence anyway.

The revisional Court also found by placing reliance on Sanjay Kumar Agrawal Vs. State of Jharkhand reported in AIR 2000 (NOC) 71 (JHAR) held that if the complainant sends notice by registered post on the correct address, it may be presumed that the demand notice was duly served. And when the petitioner himself has furnished bail bond mentioning the present address and it was also not disputed that the demand notice was sent on the address mentioned in the personal bond, it may have been received by anybody. The petitioner had also participated the proceedings in the trial Court.

In such circumstances the signatures on the acknowledgement card would not require the examination by handwriting/finger print expert since it would be impossible to find out who amongst the family members have signed the acknowledgment.

Counsel has relied on T. Nagappa Vs. Y.R. Muralidhar, to state that opportunity must be given to the accused to defend himself and it is a fundamental right if he wanted to verify the signatures by handwriting expert and the Court should not refuse the permission. He also placed reliance on a judgment of this Court in the matter of Abhishek Vs. Ramesh reported in LAWS (MPH)-2011-12-20 to held that the applicant should have been given an opportunity to adduce the opinion of handwriting expert.

On considering the authorities cited by the applicant, I find that the submissions of the Counsel for the petitioner are off the target; primarily because in both the cases signatures on the cheque were disputed, whereas in the present case the accused petitioner is seeking opinion of the handwriting expert on a registered AD card which was accepted by some other member of the family and the signatures have not been verified. I find that the submissions of the Counsel are at a tangent and not applicable in the present case. Undoubtedly opportunity of hearing is the fundamental right of every accused person as guaranteed under the Constitution of India. However the application is nothing but ploy to protract the proceedings and it would amount an abuse of process of Court and therefore cannot be allowed under any circumstances. Besides unwarranted sympathy causes prejudice to the other side. The facts and circumstances of each case are different and merely repeating the phrase that proper opportunity of hearing has not been given to the accused would not apply to the facts and circumstances of the present case. There is a concurrent finding against the petitioner and I do not find any good ground to deviate from the findings arrived at by both the Courts below after appreciating the facts and provisions of law in the case. The petition is without merit and is, therefore, dismissed as such.