Mrs. Kalyani
Baskar Vs. Mrs. M. S. Sampoornam [2006] Insc 940 (11 December 2006)
G.
P. Mathur & Lokeshwar Singh Panta
[Arising
out of S.L.P. (Crl.) No. 2639 OF 2004] Lokeshwar Singh Panta, J.
Leave
granted.
This
appeal by special leave, directed against the order dated 10.2.2004 of the High
Court of Judicature at Madras, involves a question with regard to the scope of
the powers of the Magistrate under Section 243 of the Code of Criminal
Procedure, 1973 [hereinafter referred to as `Cr.P.C.']. It arises out of these
circumstances.
A
complaint has been preferred by Mrs. M. S. Sampoornam, complainant-respondent
herein, against Mrs. Kalyani Baskar, appellant herein, and her husband for the
offence under Section 138 of the Negotiable Instruments Act, 1881 [for short
"the Act"] before the Judicial Magistrate, Tambaram, Chennai,
alleging that the appellant along with her husband jointly signed and issued a cheque
No. 037296 for discharging their liability. On presentation of the said cheque,
it was dishonoured for 'insufficient funds'. Though the notice was served upon
both the accused persons yet no reply has been sent by them. Thereafter,
observing all the formalities as contemplated under the Act, the complainant-
respondent had preferred C.C. No. 439/1998 on the file of the Judicial
Magistrate, Tambaram, Chennai, against the appellant and her husband. The
accused appeared before the Magistrate and filed an application under Section
245 of Cr.P.C. raising inter alia preliminary objections that:-
(1) the
accused has not signed the cheque nor issued it to the complainant-respondent;
(2) the
cheque, in question, was drawn from the individual account of the accused and
therefore, as alleged by the complainant, the accused and her husband could not
have jointly signed and issued the cheque;
(3) the
signature on the cheque may be sent for expert opinion to ascertain bona fide
of the same; and
(4) neither
the appellant nor her husband owe any debt to the respondent.
The
Judicial Magistrate dismissed the said application on the ground that the
genuineness of the signature could be questioned only at the time of trial of
the complaint.
Thereafter,
the trial was commenced and the evidence of the respondent was recorded. The
banker of the appellant during the cross-examination deposed that he has not
verified the signature before returning the cheque, in question, as dishonoured.
In these circumstances, during the trial of the case the appellant preferred an
application under Section 243 of Cr.P.C., requesting the Magistrate to send the
cheque in question for expert opinion to ascertain the correctness and
genuineness of the appellant's signature appearing thereon.
The
Magistrate, however, dismissed the application on the ground that it was not
mandatory that every disputed document or signature has to be sent to an Expert
for opinion, that the original document filed in the court cannot be sent out
for any reason and that every document filed before the court should be safe
till the disposal of the litigation.
Feeling
aggrieved by this order, the appellant preferred a Criminal Revision Case No.
335 of 2002 under Section 397 read with Section 401 of Cr. P.C in the High
Court of Judicature at Madras. The Revision Petition came to be
dismissed by the impugned order. Hence, this appeal by the appellant.
We
have heard Shri V. Krishnamurthy, learned counsel appearing for the
appellant-accused and Shri S.G.K. Kumar, learned counsel appearing for the
respondent and examined the material on record.
Learned
counsel for the appellant contended that the High Court has failed to
appreciate the legal position that no offence can be established against the
appellant by the respondent unless the respondent proves on record that the cheque,
in question, bears the signature of the appellant.
According
to the learned counsel, the appellant cannot be debarred from entering upon her
defence and produce her evidence without deciding the genuineness of the
signature on the cheque, in question and the dismissal of the application by
the Magistrate has caused miscarriage of justice to the appellant.
On the
other hand, the learned counsel appearing on behalf of the respondent contended
that the Magistrate has exercised his jurisdiction judiciously as the
application filed by the appellant was with the sole object to protract the
trial. He submitted that the High Court has recorded a well-reasoned order in
dismissing the revision petition filed by the appellant and this Court in
exercise of its jurisdiction under Article 136 of the Constitution of India
should not lightly interfere with the said order.
We
have given our anxious and thoughtful consideration to the respective
contentions of the learned counsel for the parties.
It is
not in dispute that the appellant at the initial stage of her appearance before
the Magistrate had filed an application under Section 245 Cr.P.C. in which she
had categorically denied her signature on the cheque and its delivery to the
respondent besides raising other preliminary objections in opposition to the
complaint filed by the respondent under Section 138 of the Act. From the
record, it appears that the said application was dismissed by the Magistrate on
the ground that the genuineness of the signature can be questioned only at the
time of trial. The appellant accepted the correctness of the said order of the
Magistrate. During the trial, the respondent was examined as P.W. 1 on
22.09.1999 and PW-3, the officer of the Bank, was examined on 22.11.2000. It is
thereafter that the appellant had filed the application under Section 243 Cr.P.C.
praying to send the cheque, in question, for ascertaining the bona fide and
genuineness of her signature appended thereon. The Trial Magistrate as well as
the High Court have observed that Section 243 Cr.P.C. deals with summoning of defence
witnesses and cause any document or thing to be produced through him. But in
the present case, the accused has filed a petition without naming any person as
witness or anything to be summoned which is to be sent for hand-writing expert
for examination.
To
appreciate the reasoning recorded by the High Court in its impugned order, it
is useful to refer to the provisions of Section 243 of Cr.P.C., which reads as
under:- "243. Evidence for defence.
(1)
The accused shall then be called upon to enter upon his defence and produce his
evidence; and if the accused puts in any written statement, the Magistrate
shall file it with the record.
(2) If
the accused, after he had entered upon his defence, applies to the Magistrate
to issue any process for compelling the attendance of any witness for the
purpose of examination or cross-examination, or the production of any document
or other thing, the Magistrate shall issue such process unless he considers
that such application should be refused on the ground that it is made for the
purpose of vexation or delay or for defeating the ends of justice and such
ground shall be recorded by him in writing:
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.
(3)
The Magistrate may, before summoning any witness on an application under sub-
section (2), require that the reasonable expenses incurred by the witness in
attending for the purposes of the trial be deposited in Court." Section
243 (2) is clear that a Magistrate holding an inquiry under the Cr.P.C. 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 hand-writing 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 hand-writing 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 of procedure designed to
ensure justice should be scrupulously followed, and courts should be jealous in
seeing that there is no breach of them. We have not been able to appreciate the
view of the learned Judge of the High Court that the petitioner has filed
application under Section 243 Cr.P.C. without naming any person as witness or
anything to be summoned, which are to be sent for handwriting expert for
examination. As noticed above, Section 243(2) Cr.P.C. refers to a stage when
the prosecution closes its evidence after examining the witnesses and the
accused has entered upon his defence. The appellant in this case requests for
sending the cheque, in question, for the opinion of the hand-writing expert
after the respondent has closed her evidence, the Magistrate should have
granted such a request unless he thinks that the object of the appellant is
vexation or delaying the criminal proceedings. In the circumstances, the order
of the High Court impugned in this appeal upholding the order of the Magistrate
is erroneous and not sustainable.
For
all the foregoing reasons, we allow this appeal and set aside the order of the
High Court dated 10.02.2004 passed in Criminal Revision Case No.335 of 2002 by
which the order dated 15.11.2001 of the Judicial Magistrate made in Crl. M. P.
No.341 of 2001 in C.C. No. 439 of 1998 dismissing the application of the
appellant under Section 243 Cr.P.C. was affirmed. Accordingly, Crl. M. P. No.341
of 2001 in C.C. No.439 of 1998 on the file of the Judicial Magistrate, Tambaram,
Chennai, shall stand allowed. The learned Magistrate shall take appropriate
steps for obtaining the report of handwriting expert on the point whether the
signature in the cheque is that of the accused and shall proceed with the trial
of the case in accordance with law. Since the case is very old, further proceedings
shall be taken with utmost expedition.
We
make it clear that any observation made in this order shall not be construed as
an expression of opinion on the merits of the case and the same shall be
decided by the Magistrate on its own merit.
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