IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:24.6.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.345 of 2006 and Crl.M.P.No.1997 of 2006 Sathyamoorthy ... Petitioner vs. A.C.Palanisamy ... Respondent Petition filed under Section 397 r/w 401 of Cr.P.C. against the order dated 18.1.2006, passed by the Judicial Magistrate No.1, Erode, in Crl.M.P.No.8362 of 2005 in C.C.No.438 of 2002. For Petitioner : Mr.N.Manokaran For Respondent : Mr.M.Srithar O R D E R
Challenging and impugning the order dated 18.1.2006, passed by the Judicial Magistrate No.1, Erode, in Crl.M.P.No.8362 of 2005 in C.C.No.438 of 2002, this criminal revision case is focussed.
2. Compendiously and concisely the relevant facts, which are absolutely necessary and germane for the disposal of this civil revision petition would run thus:
The revision petitioner herein filed the complaint in C.C.No.438 of 2002 for the offence under Section 138 of the Negotiable Instruments Act as against the respondent/accused herein. Trial commenced and at present, the matter is pending for the accused to adduce his defence evidence and it appears, the accused examined himself as D.W.1.
3. The accused filed the Crl.M.P.No.202 of 2005 for taking the assistance of a hand writing expert to compare the disputed signature in the cheque with that of his admitted signature. However, the said Crl.M.P. was dismissed. Subsequently, another Crl.M.P.No.8362 of 2005 was filed by the same accused and it was allowed. The Magistrate, in his order dated 18.1.2006, simply referred to the earlier dismissal of Crl.M.P.No.202 of 2005 and allowed the present Crl.M.P.No.8362 of 2005 on the sole ground that an opportunity should be given. There is no whisper in the order dated 18.1.2006 as to how the Magistrate had the jurisdiction to entertain Crl.M.P.No.8362 of 2005 after the dismissal of Crl.M.P.No.202 of 2005. At least, there should be some discussion on that, justifying his allowing the Crl.M.P.No.8362 of 2005.
4. The leaned counsel for the revision petitioner, who filed this revision impugning and challenging the said order dated 18.1.2006 would advance his argument that there is no power vested with the Magistrate to simply allow the second application after the dismissal of the first application by his learned predecessor. The learned counsel for the revision petitioner would submit that Crl.M.P.No.202 of 2005 was dismissed by one Magistrate and subsequently, when there was change of incumbency in presiding over the said Magistrate Court, the accused had chosen to file a fresh application and got such an order.
5. On the respondent’s side absolutely there is no explanation forth coming as to what right the accused had in filing Cr.M.P.No.8362 of 2005, after meeting his water loo in the previous Crl.M.P.No.202 of 2005.
6. At this juncture, my mind is reminiscent and redolent of the following maxims:
1. Res judicata pro veritate accipitur;
2.Nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa;
The gist and kernal of those maxims are that once the Court adjudges the cause, subsequently, it should not be adjudged.
7. I am fully aware of the decision of the Honourable Apex Court reported in JT 2007(1) SC 77 KALYANI BASKAR V. M.S.SAMPORNAM, an excerpt from it would run thus:
“12. 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 of procedure designed to ensure justice should be scrupulously followed, and the 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 CrPC 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) CrPC 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 handwriting 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.”
8. In the decision cited above, the Honourable Apex Court pointed out that even in cases under Section 138 of Negotiable Instruments Act, at the fag end of the case, assistance of the hand writing expert could be sought. But, nowhere it is stated that after dismissal of the earlier application for taking such assistance, subsequent application on the same ground could be entertained. As such, this is a case in which the Magistrate exceeded his power in exercising his jurisdiction, warranting interference by this Court and accordingly, the order dated 18.1.2006 passed in Crl.M.P.No.8362 of 2002 is set aside, by allowing this revision case. Consequently, connected miscellaneous petition is closed.
Msk
To
1. The Judicial Magistrate No.1,
Erode