BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 19/02/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.(MD).No.20 of 2007 and M.P.(MD).No.1 of 2007 Rajendran .. Petitioner Vs. Bensam Robinson .. Respondent Criminal Revision Case is filed under Sections 397 r/w 401 Cr.P.C., praying to set aside the order dated 06.12.2006 made in Crl.M.P.No.9065 of 2006 in S.T.C.No.58 of 1999 on the file of the District Munsif -cum- Judicial Magistrate, Eraniel. !For Petitioner ... Mr.C.Mayilvahana Ranjendran ^For Respondent ... Mr.T.Arul :ORDER
This Criminal Revision case is directed against the order passed by the
learned District Munsif -cum- Judicial Magistrate, Eraniel in Crl.M.P.No.9065 of
2006 in S.T.C.No.58 of 1999. By the impugned order, the learned Judicial
Magistrate, Eraniel has dismissed the application seeking a reference of Ex.D.1
receipt to the Handwriting Expert.
2. The facts leading to the filing of the criminal revision case can be
summarised as follows:
The respondent herein preferred two private complaints for an offence
under Section 138 of the Negotiable Instruments Act based on two dishonoured
cheques allegedly issued by the petitioner herein on 30.05.1998 and 25.01.1999
for the sums of Rs.60,400/- and Rs.90,000/- respectively. The said private
complaints have been taken on file by the learned District Munsif -cum- Judicial
Magistrate, Eraniel as S.T.C.Nos.58 and 1509 of 1999 respectively. The
respondent herein/complainant in the above said cases is contesting the above
said cases, after entering appearance in person and through counsel. The trial
in the above said cases is almost over. On the side of the
respondent/complainant in the above said case, he himself has been examined as
P.W.1. Three witnesses have been examined on the side of the accused (the
petitioner in the revision case) including himself. After the examination of
three witnesses on the side of the accused (the petitioner in the revision
case), the accused seems to have filed the above said petition, viz.,
Crl.M.P.No.9065 of 2006 on the file of the trial Court, praying that the
document marked as Ex.D.1 on the side of the accused should be referred to a
Handwriting Expert to find out, whether the signature found in the said document
is that of the complainant or not?. The said petition was resisted by the
respondent herein/complainant stating that the filing of the petition was
nothing but an attempt to protract the case.
3. After according due consideration to the submissions made on both
sides, the learned District Munsif -cum- Judicial Magistrate, Eraniel observed
that the receipt marked as Ex.D.1 might not be relevant and hence, would not
help the petitioner herein/accused in establishing his defence in the cheque
bounce case. The learned District Munsif -cum- Judicial Magistrate also observed
that the proof of the signature found in the above said document would no way
help the petitioner herein/accused in his defence in the private complaint for
the offence under Section 138 of the Negotiable Instruments Act. Pointing out
the fact that, according to the case of the petitioner herein/accused, the said
receipt was issued in respect of a different transaction, namely, a chit
transaction that the petitioner herein/accused did not state anything regarding
the said receipt in his reply notice for the statutory notice issued prior to
the filing of the private complaints and that nothing was mentioned in the reply
notice regarding the chit transaction, and also the fact that the petitioner
herein/accused chose to file the above said petition, after a direction was
issued by this Court for the disposal of the cases (S.T.C.Nos.58 and 1509 of
1999) within two months from the date of its order, the learned District Munsif
-cum- Judicial Magistrate observed that the same was nothing but an attempt to
protract the proceedings and hence dismissed the same.
4. Questioning the legality and correctness of the above said order dated
06.12.2006 passed by the learned District Munsif -cum- Judicial Magistrate,
Eraniel in Crl.M.P.No.9065 of 2006, the petitioner/ accused has filed this
criminal revision case.
5. The arguments advanced by Mr.C.Mayilvahana Ranjendran, learned counsel
appearing for the petitioner and also by Mr.T.Arul, learned counsel appearing
for the respondent have been heard and the documents produced in the form of
typed-sets including the copy of the impugned order have been perused.
6. The learned counsel for the petitioner/accused put forth a vehement
argument that a person accused of an offence should be given every chance to
prove his innocence and the order of the trial Court dismissing the application
seeking a reference of the disputed document for the opinion of a handwriting
expert is nothing but denial of such a reasonable opportunity for the petitioner
to prove his innocence. No doubt that a person accused of an offence should be
given every chance of proving his innocence. But at the same time, the accused
should not be allowed to misuse the process by adopting a method to protract the
case as long as possible.
7. The learned counsel for the respondent has rightly contended that the
facts and circumstances of the case will show that the case of the petitioner in
the present revision case is one such attempt aimed at protracting the case. The
petitioner herein/accused has not only failed to plead in his reply notice that
the cheques were issued in connection with a chit transaction but also chose to
make periodical payments, after entering appearance in the criminal case
registered based on the private complaint of the respondent herein. A total
amount of Rs.17,000/- was paid by the petitioner herein, after he entered
appearance in the above said criminal case S.T.C.No.58 of 1999. The said amount
was paid in piecemeal on 11 occasions. The said payment made by the petitioner
herein/accused are evidenced by the memo submitted on each occasion, the copies
of which have been enclosed in the typed-set filed by the respondent herein.
Thereafter, since no further payment was made and progress of the case was also
hindered, the respondent herein moved two petitions in Crl.O.P.Nos.5785 and 5786
of 2006 on the file of this Court for a direction to the Judicial Magistrate,
Eraniel to dispose of S.T.C.Nos.58 and 1509 of 1999 expeditiously. This Court,
after hearing both sides, on 24.08.2006 passed an order directing the Judicial
Magistrate, Eraniel to dispose of the said cases within a period of two months
from the date of receipt of a copy of the said order. In spite of the fact that
such a direction had been given by this Court, in order to get over the same and
to protract the trial of the case, the petitioner herein/accused seems to have
filed the petition for referring the document to a handwriting expert.
8. Referring to a handwriting expert is not the only way of proving a
document. There are also other ways and means of proving the document. In State
of Himachal Pradesh v. Jai Lal 1999(8) Supreme 401, the Apex Court has observed
that an expert is not a witness of fact and his evidence is really of an
advisory character. Even the opinion of the handwriting expert will only provide
a guidance for the Court to take a correct decision. It shall have a persuasive
effect and will not be of binding nature. In the presence of the opinion of a
handwriting expert, the Court has to make a comparison of the disputed and
admitted signatures, with the help of the salient features pointed out by the
handwriting expert, and come to an independent conclusion. As such, this Court
is not in a position to reject the contention of the learned counsel for the
respondent/complainant that the very purpose of filing the petition for
referring the document to a handwriting expert is to protract the case. The case
is of the year 1999. After eight long years, the petitioner has come forward
with such a plea. The facts: that the petitioner/accused has come forward with
such a petition belatedly; that such stand was not taken in the reply statement
sent by the petitioner/accused and that the petition was filed only after the
receipt of the order of this Court, containing a direction to the Judicial
Magistrate to dispose of the case within two months – will amplify the object
sought to be achieved by the petitioner, namely, protraction of the case.
Therefore, this Court sees no error or infirmity in the order passed by the
learned District Munsif -cum-Judicial Magistrate, Eraniel in dismissing
Crl.M.P.No.9065 of 2006 and comes to a conclusion that there is no scope for
interference with the same in exercise of the revisional powers of this Court.
9. For all the reasons stated above, the Criminal Revision Case fails and
the same deserves to be dismissed.
10. In the result, this Criminal Revision Case is dismissed. Consequently,
connected M.P.No.1 of 2007 is also dismissed.
SML
To
The District Munsif -cum-
Judicial Magistrate,
Eraniel.