BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 26/03/2007 CORAM THE HONOURABLE MR. JUSTICE P. MURGESEN Criminal Appeal No.765 of 2001 A.Balakrishnan .. Appellant Vs Kalaipuli G.Sekaran .. Respondent Criminal Appeal filed under Section 378(4) of Crl.P.C. against the order of acquittal passed in C.C.No.276 of 1997 by the learned Judicial Magistrate No.1, Madurai. !For Appellant : Mr.M.Subash Babu ^For Respondent : Mr.P.Sathyamurthy :J U D G M E N T
The appeal is directed against the order of acquittal passed in C.C.No.276
of 1997 by the learned Judicial Magistrate No.1, Madurai.
2.The brief facts of the case of the complainant are as follows:
a)The complainant is a Distributor of cine films. The accused is both
producer and an actor. The complainant on earlier occasions had business
dealings with the accused and thus gave an opportunity for both of them to know
each other well.
b)The accused produced a Tamil picture viz.’Kudumba Sangili’ and at that
time he was in an emergent need of money. Hence, he approached the complainant
to lend him a sum of Rupees Five Lakhs with a promise to repay the amount with
interest. The accused also promised to issue a post dated cheque in favour of
the complainant. Therefore, on 4.11.1996, the complainant gave a sum of Rupees
Five Lakhs in cash to the accused. The accused also received the cash and gave
the post-dated cheque bearing No.948084 dated 4.12.1996 drawn in Canara bank,
Vadapalani, Madras.
c)Inspite of demand made by the complainant, the accused did not repay the
amount. Therefore, on 12.5.1997, the complainant presented the above said
cheque No.948084.
However, the said cheque was dishonoured with an endorsement ‘Funds
Insufficient’. Therefore, the complainant through his counsel sent a notice
dated 1.6.1997 to the accused. The said notice was returned with an endorsement
”always door locked”. However, the other notice which was sent by
‘Certificate of Posting’ had been duly served on the accused and the accused
also sent a reply on 10.6.1997 with untrue, imaginary and invented versions and
allegations. Hence the complaint.
3.The complainant in order to bring home the charges against the accused,
examined P.Ws 1 & 2 and filed Ex.P1 to P5. On the side of defence, D.Ws 1 to
3 were examined and D.W.1-the report of the Forensic Lab was filed.
4.On consideration of the entire evidence on record, the learned Judicial
Magistrate I, Madurai, found the accused not guilty and acquitted him of the
charges levelled against him.
5.Challenging the judgment of the learned Judicial Magistrate, Madurai,
the above appeal has been filed by the complainant /appellant.
6.Point for Determination:
1.whether the respondent has committed the offence under
Section 138 of the Negotiable Instruments Act ?
POINTS FOR DETERMINATION:
7.P.W.1-complainant is a Distributor of cine films. The accused is both
producer and an actor. The complainant on earlier occasions had business
dealings with the accused and thus gave an opportunity for both of them to know
each other well.
8.The accused produced a Tamil picture viz.’Kudumba Sangili’ and for
completion of that film, he was in an emergent need of money. Hence, he
approached the complainant to lend him a sum of Rupees Five Lakhs with a promise
to repay the amount with interest. The accused also promised to issue a post
dated cheque in favour of the complainant. Therefore, on 4.11.1996, the
complainant gave a sum of Rupees Five Lakhs in cash to the accused. The accused
also received the cash and gave the post-dated cheque bearing No.948084 dated
4.12.1996 drawn in Canara bank, Vadapalani, Madras.
9.It is stated that inspite of demand made by the complainant, the accused
did not pay the amount. Therefore, on 12.5.1997, the complainant presented the
above said cheque No.948084. However, the said cheque was dishonoured with an
endorsement ‘Funds Insufficient’.
10.It is the case of the respondent that the cheque was given to one
Pandiyan in respect of the film produced by him and when said Pandiyan was not
willing to purchase the film, in order to compromise the matter, he gave a blank
cheque to Pandiyan and the said cheque was misused by P.W.1.
11.No doubt, in the Cheque-Ex.P1, the date and the signature was written
by the accused, but the body of the cheque was written by another person. This
is admitted by P.W.1. But, P.W.1 is unable to say who wrote the body of the
cheque. In this case, the cheque was sent to Finger Prints Experts and the
report was also received. This was spoken by D.W.3-Court Head Clerk. However,
the Finger Print Expert was not examined.
12.The learned counsel for the appellant/complainant relied on the
decision of the Superme Court in STATE OF H.P. Vs JAI LAL AND OTHERS reported in
1999 SCC (Crl) 1184, wherein in paragraph Nos.17 to 19, it has been observed as
follows:
“17.Section 45 of the Evidence Act which makes opinion of experts
admissible lays down that when the court has to form an opinion upon a point of
foreign law, or of science, or art, or as to identity of handwriting or finger
impressions, the opinions upon that point of persons specially skilled in such
foreign law, science or art, or in questions as to identify of handwriting, or
finger impressions are relevant facts. Therefore, in order to bring the
evidence of a witness as that of an expert it has to be shown that he has to
make a special study of the subject or acquired a special experience therein or
in other words that he is skilled and has adequate knowledge of the subject.
18.An expert is not a witness of fact. His evidence is really of an
advisory character. The duty of an expert witness is to furnish the Judge with
the necessary scientific criteria for testing the accuracy fo the conclusions so
as to enable the Judge to form his independent judgment by the application of
this criteria to the facts proved by the
evidence of the case. The scientific opinion evidence, if intelligible,
convincing and tested becomes a factor and often an important factor for
consideration along with the other evidence of the case. The credibility of
such a witness depends on the reasons stated in support of his conclusions and
the date and material furnished which form the basis of his conclusions.
19.The report submitted by an expert does not go in evidence
automatically. He is to be examined as a witness in court and has to face
cross-examination. This Court in the case of Hazi Mohammad Ekramul Haq V. State
of W.B. concurred with the finding of the High Court in not placing any reliance
upon the evidence of an expert witness on the ground that his evidence was
merely an opinion unsupported by any reasons.”
13.No doubt, expert is not a witness of fact and his evidence is really of
an advisory character. In the case on hand, though expert was not examined, his
evidence is only advisory in character. So, it cannot be the basis for any
conviction. Further, the evidence of P.W.1 would show that the body of the
cheque was written by another person who is stranger to P.W.1. However, the
evidence of D.Ws 1 to 3 would show that one Pandiyan agreed to purchase the film
produced by the accused, later on when Pandiyan was not willing to purchase the
film, there was a
compromise between them and at that time only, the blank cheque was given to the
Pandiyan.
14.D.Ws 1 and 2 are in the same field and their evidence would show that
there was a compromise between Pandiyan and accused. Further, the evidence of
D.W.1 would show that the case of the complainant is not true, because he
admitted that before 4.11.1996, there was no business transaction between them,
but, in the complaint, he has stated that on earlier occasions, he had business
dealings with the accused. So, it is clear that the complainant deposed
against the averments in the complaint.
15.According to the complainant, accused demanded money for completion of
Tamil film ‘Kudumba Sangili’, but he is not able to say, who is the Director of
that film. According to him, it is the practice in the Cinema Industry that,
eventhough money will be lend for taking film, but in actual practice, the
amount will be given only after completion of the film. But, in this case, the
version of P.W.1 that without seeing the film he advanced the cheque for Rupees
Five Lakhs without any security, is highly artificial.
16.It is seen that as per the evidence of D.Ws 1 & 2, the cheque was
issued by the accused to one Pandiyan and their evidence are quite natural. So,
when the cheque was not issued by the accused to the complainant for the amount
alleged to have been received from the complainant, I find the evidence of P.W.1
is liable to be rejected. The complainant has failed to prove the case.
17.Therefore, the appeal filed by the appellant/ complainant fails and the
same is dismissed, confirming the order of acquittal passed in C.C.No.276 of
1997 by the learned Judicial Magistrate No.1, Madurai.
To
The Judicial Magistrate No.1, Madurai.