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Judgment
,,,,,
The petitioner has filed this petition under Section 482 of the Cr.P.C. challenging the order dated 21.06.2017 (Annexure P/1) passed by Sessions,,,,,
Judge, Korba, District- Korba (C.G.) in Criminal Revision Case No. 12/2017 by which the Revisional Court has dismissed the revision and affirmed",,,,,
the order dated 30.05.2015 (Annexure P/10) passed by Chief Judicial Magistrate, Korba (C.G.) in Complaint Case No. 625/2014, by which the",,,,,
learned Chief Judicial Magistrate, Korba, District- Korba (C.G.) has rejected the application filed by the petitioner for examination of cheque through",,,,,
handwriting expert as per provisions of Section 45 of the Indian Evidence Act.,,,,,
This case has long story as various cases have been in various forum used for redressal of the grievance including filing of SLP before Hon'ble the,,,,,
Supreme Court by the parties.,,,,,
The brief facts as projected by the petitioner are that a notice under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act,",,,,,
1881â€) was issued to the petitioner by respondent/ complainant alleging that in order to sell his land, an agreement was executed between the",,,,,
petitioner and the complainant. Accordingly, on 23.10.2011, the complainant paid Rs. 61,00,000/- to the accused and the accused has also given him a",,,,,
receipt of the same. However, subsequently, the petitioner expressed his inability for execution of sale deed and both the parties agreed to cancel the",,,,,
agreement executed between them. It was agreed by the petitioner that he will compensate the complainant and he will pay a sum of Rs. 1,60,000,00/-",,,,,
in lieu of Rs. 61,00,000/- received as advance money.",,,,,
On 14.05.2014, the petitioner issued a cheque of HDFC Bank Branch- Korba in favour of the respondent, however, when the cheque was",,,,,
presented on 15.05.2014, the same was dishonoured with an endorsement that there is insufficient amount in the account. The complainant informed",,,,,
the petitioner about dishonour of the cheque, but he has not responded the same, therefore, he sent a notice to the petitioner on 29.05.2014 (Annexure",,,,,
P/2). The petitioner has submitted his reply to the notice contending that neither any agreement was executed for sale nor he has received any amount,,,,,
in lieu of sale of land. No compromise etc. took place for payment of loss sustained by the complainant to the tune of Rs. 1,60,000,00/-. He has not",,,,,
issued any cheque for payment of aforesaid amount. On the contrary, on 10.05.2014 during traveling from Korba to Katghora by motor-cycle, the",,,,,
petitioner lost his handbag containing various documents alongwith cheque book of HDFC Bank in which some of the cheques were signed and the,,,,,
complainant is misusing the aforesaid signed cheque. The petitioner has lodged report at Police Station- Katghora on 10.05.2014 itself. After receipt of,,,,,
reply, the complainant filed a complaint reiterating the same story as projected in the notice.",,,,,
On the basis of said complaint, the trial Court issued notice to the petitioner. The petitioner then appeared before the trial Court and has stated that",,,,,
he has been falsely implicated in this case, no cheque has been issued to the complainant against any liability. The aforesaid cheque was lost in which,",,,,,
he has only singed the cheque but amount has been written by complainant which is being misused by the complainant.,,,,,
On 15.05.2015, the petitioner moved an application for examination of handwriting expert stating that in the alleged cheque bearing No. 086027 was",,,,,
lost in which except his signature, the other particulars were not written by him, therefore, the petitioner wants to examine the handwriting from",,,,,
handwriting expert- Smt. S. Dhenge, Raipur and for this, he is ready to bear the expenses for the same. After recording statement of the complainant,",,,,,
the statement of petitioner under Section 313 of the Cr.P.C. was recorded, wherein, he has denied the allegation made against him. He has specially",,,,,
stated that the signed cheque was lost which is being misused by the complainant. There is no liability upon the petitioner to pay any amount. He has,,,,,
further stated that he will give evidence in his defence and about five defence witnesses have to be examined. After hearing the parties, the learned",,,,,
trial Court vide order dated 30.05.2015 dismissed the application holding that there is no necessity to examine the handwriting of the cheque and the,,,,,
petitioner can defend himself by adducing his defence witnesses.,,,,,
It has been further contended by learned Counsel for petitioner that complainant has filed complaint under Section 200 of the Cr.P.C. against,,,,,
respondent- Rudhmal Agrawal and his son-in-law Rakesh Goyal for committing offence punishable under Sections 420, 467 of I.P.C., whereas the",,,,,
respondent moved an application under Section 438 of the Cr.P.C. before the Sessions Court for grant of bail, which was dismissed vide order dated",,,,,
26.08.2015. Against that rejection order, the respondent moved an application under Section 438 of Cr.P.C. bearing MCRCA No. 978/2015 before",,,,,
this Court and this Court vide order dated 04.12.2015 dismissed the application filed by the respondent for grant of anticipatory bail.,,,,,
On 30.01.2016, the complainant and the petitioner entered into a compromise in which the complainant has specially stated that he will withdraw his",,,,,
Complaint Case No. 625/2016, and if any proceeding will be done by him, the same shall be treated as null and void. On the basis of compromise",,,,,
arrived at between the parties, the respondent has further moved an application before this Court under Section under 438 of Cr.P.C. bearing",,,,,
MCRCA No. 511/2016 and this Court vide order dated 26.08.2016 allowed the application and granted anticipatory bail in favour of the respondent.,,,,,
Since, the parties have entered into compromise, therefore, both the parties appeared before the trial Court with a prayer that the matter may be",,,,,
listed before Lok Adalat for compromise, but the compromise could not be arrived at between the parties, thereafter, the trial Court fixed the case for",,,,,
considering the application for compromise but for one and another reason, it could not be finalized and on 16.03.2016, opportunity of the petitioner for",,,,,
adducing his defence witnesses has also been closed.,,,,,
Learned counsel for the petitioner would further submit that Petitioner has filed Criminal Revision No. 1200/2016 before this Court, which was",,,,,
dismissed vide order dated 26.04.2017 (Annexure P/14), with liberty granted in favour of the petitioner to prefer a petition before Sessions Judge",,,,,
under Section 397 of the Cr.P.C. against the order dated 30.05.2015 by which application of petitioner to examine the cheque through handwriting,,,,,
expert has been rejected. Thereafter, the petitioner has filed revision petition under section 397 of Cr. P.C registered as criminal revision No.12/2017",,,,,
mainly contending that the petitioner was under impression that the agreement could have been materialized between them, therefore, he is not",,,,,
required to lead defence witnesses and his right to lead evidence was closed. Due to that reason, the petitioner could not challenge the order dated",,,,,
30.05.2015 within time by which his application filed under Section 45 of the Indian Evidence Act for examination of handwriting of the cheque was,,,,,
dismissed. When the opportunity to adduce defence evidence was closed, he has filed present revision petition and would pray that the order dated",,,,,
30.05.2015 be kindly quashed. The Revisional Court dismissed the petition filed by the petitioner vide impugned order dated 21.06.2017 (Annexure,,,,,
P/1).,,,,,
Learned counsel for the petitioner would further submit that the trial Court has not considered the real dispute between the parties and the opinion,,,,,
of handwriting expert was necessary. The petitioner could not be convicted without being given opportunity to him to present his evidence. As such, it",,,,,
is prayed that the impugned order may kindly be quashed.,,,,,
Learned counsel for the respondent vehemently objected the contention raised by learned counsel for the petitioner and would submit that the,,,,,
petitioner has not placed true and correct factual matrix of the case. The petitioner has also filed CRMP No. 584/2016 and 583/2016 challenging,,,,,
various orders passed by learned trial Court as well as by Revisional Court. The details of order assailed by the petitioner are given in table format as,,,,,
under:-,,,,,
SN,Trial Court's order date,"Revisional Court's
order & date",Remarks,"H i g h Court's
Order & date","Supreme Court's
Order & date
1.,16.02.15,"CRR No. 12/2015
dt. 27.04.15","Charges have
been framed","C R M P No.
415/20152
9.06.15",
2.,29.03.16,"CRR No. 32/2016
dt. 25.04.16","Application u/s
311 has been
rejected.","C R M P No.
583/20162
3.08.16",
3.,16.03.16,"CRR No. 31/2016
dt. 25.04.16","Petitioner's right
to lead evidence
has been closed.","C R M P No.
584/20162
3.08.16",
4.,SLP (Crl.) 21527/20 17,,,"SLP dismissed on
the ground of
delay.",04.12.17
5.,SLP (Crl.) 800/2018,,,"SLP dismissed on
the ground of
delay.",16.03.18
Provided that, when the accused has cross- examined or had the opportunity of cross- examining any witness before entering on his defence, the",,,,,
attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.""",,,,,
The right of an accused under sub-section (2) of Section 243 of the Evidence Act is, thus, not an absolute one. He cannot take recourse thereto for",,,,,
the purpose of delaying the proceedings. An application filed by an accused must be for subserving the cause of justice and not for subverting the,,,,,
same. In Kalyani Baskar v. M.S. Sampoornam [(2007) 2 SCC 258], this Court held as under :",,,,,
Section 243(2) is clear that a Magistrate holding an inquiry under CrPC in respect of an offence triable by him does not exceed his powers under",,,,,
Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert because",,,,,
even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature",,,,,
of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if,,,,,
the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good,,,,,
material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has",,,,,
deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her,,,,,
evidence and if it is denied to her, there is no fair trial. `Fair trial' includes fair and proper opportunities allowed by law to prove her innocence.",,,,,
Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules or procedure,,,,,
designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them.""",,,,,
Kalyani Bhaskar has been followed by this Court in T. Nagappa v. Y.R. Muralidhar [(2008) 5 SCC 633)],,,,,
An accused has a right to fair trial. He has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21",,,,,
of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognized by Parliament in terms of sub-section,,,,,
(2) of Section 243 of the Code of Criminal Procedure.....""",,,,,
Keeping in view the peculiar facts and circumstances of this case, we are of the opinion that the interest of justice would be subserved if an",,,,,
opportunity is granted to the appellant to examine an expert at his own costs. If he requisitions the services of an expert, the learned Judge would",,,,,
grant him an opportunity to examine the disputed documents, submit a report and examine himself as a witness in the case preferably on the same",,,,,
date. Such a step, however, must be taken by the appellant within six weeks from date.â€",,,,,
On the above mentioned judgment, Hon'ble the Supreme Court has granted permission to call for the report of handwriting expert regarding the",,,,,
disputed cheques.,,,,,
Learned counsel for respondent would submit that as per Section 20 of the Act, 1881, the amount has been indicted in the cheque, therefore, the",,,,,
application filed by the petitioner for sending the matter to handwriting expert is nothing but an abuse of process of law. It has been further contended,,,,,
that as per Section 20 of the Act, 1881, a right has been created in favour of the holder of the cheque subject to the conditions mentioned therein,",,,,,
thereby, only a prima facie authority is granted, inter alia, to complete an incomplete negotiable instrument. The provision has a rider, namely, no",,,,,
person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to,,,,,
be paid therein. The Section 20 of the Act, 1881 reads as under:-",,,,,
Section 20 - Inchoate stamped instruments. Where one person signs and delivers to another a paper stamped in accordance with the law relating to",,,,,
negotiable instruments then in force in 1 [India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby",,,,,
gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified",,,,,
therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he",,,,,
signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person",,,,,
delivering the instrument anything in excess of the amount intended by him to be paid thereunder.""",,,,,
The learned Chief Judicial Magistrate vide order dated 30.05.2015 has rejected the application filed by the petitioner referring the matter to,,,,,
handwriting expert which was not challenged by the petitioner before any court till filing of revision before the learned Sessions Judge, Korba in CRR",,,,,
No. 12/2017. The said order was assailed in the year 2017 and the learned Sessions Judge vide its order dated 21.06.2017 has rejected the said,,,,,
revision petition by recording finding that the petitioner has admitted the signature therefore order passed by Judaical Magistrate First Class rejecting,,,,,
application is legal justified, accordingly the revision petition is liable to be rejected with cost of Rs. 500/-. This order has been challenged by the",,,,,
petitioner before this Court, therefore, from the above facts, it has to be seen that the order dated 30.05.2015 is neither stated before this Court or",,,,,
disputed before the Hon'ble the Supreme Court, therefore, validity of the order dated 30.05.2015 and revision No. 21.06.2017 has to be examined by",,,,,
this Court independently considering the factual matrix already taken place in the case of filing various litigation before this Court.,,,,,
Now coming to the facts of the case that the petitioner from the very beginning has raised the contention that the cheque has been misused by the,,,,,
respondent as it has been lost in transit and even in his statement recorded under Section 313 of Cr.P.C. the petitioner in his statement at question has,,,,,
stated in clear terms and even in his reply to the notice dated 29.05.2014 (Annexure P/3) as well as in the application dated 30.05.2015 submitted,,,,,
before learned Chief Judicial Magistrate, Korba for referring the matter to handwriting expert. Question No. 4, 5, 6 & 12 and reply of the petitioner",,,,,
are as under:-,,,,,
As such, this Court can draw inference that from very beginning, the petitioner has built up the defence that the cheques have been misused by the",,,,,
respondent and opportunity to lead evidence was closed by the learned trial Court which was affirmed by the Revisional Court, this Court and SLP",,,,,
has also been dismissed by Hon'ble the Supreme Court. In such situation, if accused is not granted liberty for his possible defence, which he has taken",,,,,
right from the beginning, this will amount to denial of principle of natural justice as well as the law laid down by Hon'ble the Supreme Court.",,,,,
The judgment cited by learned counsel for the respondent is not applicable to the peculiar facts and circumstances of this case as the petitioner's,,,,,
right to lead evidence has already been closed and the defense of misusing of cheque is not taken for the first time by the petitioner but from very,,,,,
initial stage of case starts from at the time of giving reply to the statutory notice issued as per Section 138 of the 1881 in the statement recorded under,,,,,
section 313 Cr.P.C as such facts of other cases cited by learned counsel for respondent are distinguishable from the facts and circumstances of the,,,,,
present case.,,,,,
In view of the above, the order dated 21.06.2017 (Annexure P/1) passed by Sessions Judge, Korba, District- Korba (C.G.) in Criminal Revision",,,,,
Case No. 12/2017, by which the Revisional Court has dismissed the revision and affirmed the order dated 30.05.2015 (Annexure P/10) passed by",,,,,
Chief Judicial Magistrate, Korba (C.G.) in Complaint Case No. 625/2014, is liable to be and is hereby quashed, subject to payment of cost of Rs.",,,,,
20,000/- (Rs. Twenty Thousand ) payable to the respondent. The cost will be payable to respondent before sending the cheque to handwriting expert.",,,,,
The parties are directed to appear before the Chief Judicial Magistrate, Korba (C.G.) on 5th October, 2021.",,,,,
However, the trial Court is directed the trial Court to send the cheque to the handwriting expert on the cost payable by the petitioner towards",,,,,
expenses incurred for the same thereafter, the trial Court on receipt of report from handwriting expert will decide the matter on its own merits. The",,,,,
respondent is at liberty to cross-examine the handwriting expert.,,,,,
With the aforesaid observations and directions, the present petition is allowed.",,,,,