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Judgment
This revision petition is filed by the petitioner accused challenging the legality and correctness of the judgment and order of conviction dated 17.1.2013 passed by the Principal I JMFC at Mysuru in C.C. No.538/2011 and the judgment and order dated 28.2.2014 passed by the 5th Additional Sessions Judge at Mysuru in Criminal Appeal No.41/2013. By the judgment and order, the trial Court convicted the revision petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act and the revision petitioner was directed to pay fine of Rs.7,00,000/- and in default, to undergo simple imprisonment for one month. Being aggrieved by the said judgment and order of the trial Court, when the accused preferred an appeal, the first appellate Court also, on re-appreciation of the materials, dismissed the appeal confirming the judgment and order of the trial Court. the revision petitioner is before this Court challenging the legality and correctness of the judgment and orders of the Courts below on the grounds as mentioned in the revision petition.
Brief facts leading to the filing of the case before the trial Court was that the accused is the wife of complainant''s younger brother Sri. Maria. The complainant filed a suit in O.S.No.1002/2007 on the file of the Principal Senior Civil Judge, Mysore against her brothers and also the accused seeking partition and seeking partition and separate possession of her share in all four items of the property mentioned in the plaint schedule. During the pendency of that suit as per the statement, the complainant agreed to give up her share in item No.2 of the schedule property and on negotiation, the share of the complainant in respect of item No.2 was fixed at Rs.6,50,000/- and the accused paid a sum of Rs.2,50,000/- and for the balance amount Rs.4,00,000/-, she issued a post dated cheque No.632681 drawn on Bank of India, Jayapura Branch, dated: 23.04.2010. Accordingly, the complainant filed a necessary application before the Court for deletion of item No.2 in that suit, which was allowed by the Court. When the complainant presented the said cheque for enchashment, it came to be dis-honoured for the reason ''signature differs'' vide bank memo dated 06.10.2010. Immediately, the complainant approached the accused and at her request, re-presented the cheque through her banker Punjab National Bank, Mysore on 12.10.2010 and the said cheque came to be dis- honoured for the reason ''Insufficient Funds'' in the account of the accused vide Bank Memo dated 26.10.2010. Then the complainant caused legal notice calling upon the accused to repay the cheque amount within 15 days. Though it was served on the accused on 04.11.2010, she neither replied nor complied the demand made in the notice.
Heard learned Counsel for the revision petitioner-accused and the learned Counsel for the respondent-complainant.
Learned Counsel for the petitioner during the course of the arguments made submission that the amount of Rs.6,50,000/- was settled to be payable by the revision petitioner (6th defendant in the said suit) to the respondent complainant in respect of share of the complainant in item No.2 of the said property. Out of Rs.6,50,000/-, Rs.2,50,000/- was paid in cash and thereafter, the revision petitioner accused had also paid Rs.4,00,000/- to the complainant in the said suit. The revision petitioner never issued cheque under Ex.P.1 promising to pay Rs.4,00,000/- to the respondent complainant. Learned Counsel also made submission that since the revision petitioner being the illiterate lady and that she is also the relative of the complainant, taking undue advantage of the same, the cheque had been created and the same was presented to the bank as if it was issued by the revision petitioner. Even looking to the evidence of the Manager of the Bank (P.W.2), it also clearly goes to show that even the cheque book was not issued to the revision petitioner and that it also supports the case of the revision petitioner that Ex.P.1 cheque was not at all issued by her. Learned Counsel drawing the attention of this Court to the records and more particularly to Ex.P.1 and the signature on the said instrument so also Ex.P.12, made submission that it cannot be said that signature on Ex.P.1 was the signature of the revision petitioner herein. Hence, he made submission that the trial Court ought to have referred the instrument Ex.P.1 for expert''s opinion to know as to whether it was the signature of revision petitioner or not. The trial Court on its own, though observed in its judgment that there is slight difference between the signatures on the Ex.P.1 and other signature on the record, even then, it wrongly came to the conclusion that it was the signature of the revision petitioner. Hence, to do justice to the parties, it is necessary to allow the revision petition and to remand the matter to the trial Court for fresh disposal and the trial Court may be directed to refer the instrument for expert''s opinion and then take the decision in the matter.
Per contra, learned Counsel for the respondent complainant submitted that with regard to the contentions raised by the revision petitioner that the cheque did not belong to the revision petitioner and the signature on the said instrument was the forged one, the learned Counsel drew the attention of this Court to the evidence of P.W.2 so also the observation by the trial Court made in the body of its judgment at page No.13, and submitted that looking to the materials, it shows that the revision petitioner took a false contention to avoid liability of making the payment of Rs.4,00,000/-. The learned Counsel submitted that before filing the complaint, a legal notice was issued and though it was served on the revision petitioner-accused, she did not give any reply. As per the settlement and the amount paid by way of Rs.2,50,000/- and by way of cheque, the respondent complainant filed an application under Order VI Rule 17 of CPC in the said case before the trial Court, narrating all the facts and even the cheque number was also mentioned. Hence, the trial Court was competent to compare the signature as per Section 73 of the Evidence Act and rightly, the trial Court compared the disputed signatures and came to the conclusion that the signature on the Cheque is that of the revision petitioner. So far as the factual aspect is concerned, there are concurrent findings of the Courts below. Since these proceedings being the criminal revision petition, the scope is limited. This Court cannot look into the entire factual aspect unless it is shown that illegality has been committed by the Courts below in appreciating the material on record. Hence, there is no merit in the revision petition and the same is to be dismissed.
I have perused the grounds urged in the revision petition, judgments and order of the trial Court and the judgment and orders of the first appellate Court and the other materials placed on record.
So far as the scope of the revision petition is concerned, as it is rightly submitted by the learned Counsel for respondent complainant, it is the limited scope and the first appellate Court is the last Court to look into factual aspect. So far as the factual aspect is concerned, in the revision petition, the parties have to make out a case that certain relevant materials are totally ignored by the Court below or the relevant materials have been wrongly read by the Courts below. The parties have also to show that the irrelevant materials have been considered by the Courts below in their judgments. Hence, looking to the materials placed on record, this Court has to examine whether such illegality has been committed by the Courts below in coming to such conclusion.
It is no doubt true that the legal notice was issued to the revision petitioner-accused by the respondent-complainant before filing the complaint. Though it was served, the revision petitioner has not given reply to the said notice. Only because of that, it cannot be contended that the entire case of the respondent-complainant has been admitted by the revision petitioner-accused. Again that all depends upon what is the material before the Courts below.
Looking to the evidentiary part of P.Ws.1 and 2, in the cross examination of P.W.1, she has deposed that she cannot read and write. When it was suggested that the accused does not know reading and writing, it was not denied by the witness but she showed her ignorance that she does not know. The relationship of the accused is that she is P.W.1''s younger brother''s wife is admitted by her. When it was suggested that the accused is not liable to pay Rs.4,00,000/- and the complainant has filed a false case, the same has been denied by the accused. It was specifically suggested to P.W.1 that she herself put the signature on Ex.P.1 cheque and presented to the bank, however, the said suggestion has been denied by the revision petitioner.
Looking to the oral evidence of the Manager of Bank of India at Mysuru (P.W.2), in the examination-in- chief, she has deposed that Ex.P.1 cheque was given to Muniyamma. The signature on Ex.P.1 is that of Muniyamma. Ex.P.1 cheque was received by their bank from Punjab National Bank for collection. She has further deposed that, at that time, as there was no sufficient balance in the account of Muniyamma, the said cheque was sent back. She has further deposed that the cheque was presented two times for encashment. But as there was no sufficient balance in the account of Muniyamma, both times, it was sent back with the endorsement from their bank. As per the rules of their bank, at the time of issuing the cheque book, only the khatedars will go to sign the book to get the same, other wise, they will not issue. Looking to the cross examination of P.W.2, she has deposed that in the account opening form (Ex.P.12), there is name of Muniyamma and Muniyamma has signed on the said form. There is scanning machine in their bank to verify the signature and the result coming from the machine is hundred percent accurate. It was suggested to P.W.2 that there is variance in the signature of Muniyamma on the account opening form and the signature on the cheque (Ex.P.1), for that, the witness answered that the variance is visible. The witness has further deposed that the signatures are of the same person. The reason assigned was that she will see the signature and verify. When it was suggested that in the account opening form, it is written as ''Mamamma'', it was accepted as correct. The witness has also deposed that it is correct that in the cheque (Ex.P.1), it is written as Muniyamma. When khatedars open the katha and demand the cheque book, they will issue the cheque book. When they issue the cheque book, they will enter the name of khatedar in the bank register. P.W.2 has also deposed that for the issue of the cheque to kahtedars, they will get acknowledgement from the khatedar. The witness has further deposed that in this particular case, they have not received the acknowledgement from the khatedar for issuing the cheque book. However, the register was brought to the Court and it was marked as Ex.P.17. P.W.2 has also deposed that Sl. Nos.681 to 690 are the cheque numbers issued to Muniyama referring to the register at Ex.P.17.
Looking to the evidence of P.W.2, she herself has accepted that there will be variance in the signature on Ex.P.1 and also on Ex.P.12. I have perused Ex.P.1. It is not only mentioned as Muniyamma, but with bare eyes, it could be seen that there is over writing and on the said cheque, there is name of Muniyamma. When this is the matter, the trial Court ought to have taken the opinion of expert to know as to whether it is the signature of the revision petitioner accused so also to know as to whether there is any over writing in the words written in Kannada as Muniyamma. But this was not done by the Courts below. The trial Court observed in its judgment that though there is such slight difference, the other materials would show that this is the signature of Muniyamma and accordingly, convicted the accused. When there is difference in the signature, no doubt true, under Section 73 of the Evidence Act, the Court is empowered to take decision as observed by the Hon''ble Apex Court in the decision in case of STATE (DELHI ADMINISTRATION) VS. PALI RAM reported in (1979)2 SCC 158, wherein Their Lordships have observed in para No.30 of the judgment as under:
The matter can be viewed from another angle, also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert.
Regarding the contention of learned Counsel for the respondent complainant that the revision petitioner has not sent reply to the legal notice and she did not enter into the witness box, the defence can prove not only by entering to the witness box, but it can be established during the course of cross examination of the prosecution witnesses also. The degree of proof, the accused has to establish is the preponderance of probability and need not establish the defence beyond reasonable doubt. However, as the matter is to be disposed of afresh after obtaining the experts'' opinion by the trial Court, I am not going to make any comment on the other merits of the case. Accordingly to do substantial justice to the parties, I am of the opinion that the matter is to be remanded back to the trial Court for fresh disposal. Therefore, the revision petition is allowed. The judgment and orders of the Courts below are set aside and the matter is remanded back to the trial Court for its decision afresh. The revision petitioner-accused is at liberty to make an application requesting the trial Court for referring the instrument cheque and admitted siganture for expert''s opinion and after getting the expert''s opinion, if the revision petitioner-accused as well as the respondent- complainant intend to lead further evidence, in the matter, the trial Court shall afford opportunity to both sides and then dispose of the same in accordance with law. The trial Court is directed to take steps to dispose of the matter expeditiously but not later than the outer limit of three months from the date of receipt of opinion of expert. Learned Counsel appearing for both parties are present and hence, the trial Court need not issue notice again to the parties. The parties are directed to appear before the trial Court on 17.02.2017. However, as submitted by learned Counsel for respondent- complainant, the attachment order passed by the trial Court will continue till the disposal of the case.