{"id":197706,"date":"2010-12-23T00:00:00","date_gmt":"2010-12-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/prema-vs-d-ramaswamy-on-23-december-2010"},"modified":"2017-03-18T19:53:20","modified_gmt":"2017-03-18T14:23:20","slug":"prema-vs-d-ramaswamy-on-23-december-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/prema-vs-d-ramaswamy-on-23-december-2010","title":{"rendered":"Prema vs D.Ramaswamy on 23 December, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Prema vs D.Ramaswamy on 23 December, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDated: 23\/12\/2010\n\t\t\t\t\t\nCoram\nThe Honourable Mr. Justice S.TAMILVANAN\n\nCrl.R.C (MD).No.464 of 2010\nand\nM.P.(MD).No.1 of 2010\n\t\t\t\t\t\nPrema\t\t\t           ..... Petitioner\n\nvs.\n\nD.Ramaswamy\t\t\t   ..... Respondent\n\n\tCriminal Revision Case filed under Section 397 r\/w 401 of Criminal\nProcedure Code against the order, dated 08.06.2010 made in Crl.M.P.No.6017 of\n2010 in C.C.No.417 of 2006 on the file of the Judicial Magistrate,\nPadmanabhapuram, Kanyakumari District.\n\n!For petitioner\t ... Mr.C.K.M.Appaji\n^For respondent  ... Mr.M.P.Senthil\n\n:ORDER\n<\/pre>\n
\tThis Criminal Revision has been preferred against the order, dated
\n08.06.2010 made in Crl.M.P.No.6017 of 2010 in C.C.No.417 of 2006 on the file of
\nthe Judicial Magistrate, Padmanabhapuram, Kanyakumari District.\n<\/p>\n
\t2. It is seen that the aforesaid miscellaneous petition was filed under
\nSections 293 and 311 of Cr.P.C, seeking an order to send the document for expert
\nopinion. It is an admitted fact that the case was taken on file on the complaint
\ngiven by the respondent herein under Section 138 and 142 of Negotiable
\nInstruments Act r\/w Section 200 Cr.P.C.\n<\/p>\n
\t3. As per the complaint given by the respondent before the court below,
\nthe petitioner herein had issued a cheque, dated 07.08.2006 for a sum of
\nRs.2,00,000\/- drawn on State Bank of Travancore, Thiruvattar Branch, in favour
\nof the respondent for the amount due and payable to him. When the cheque was
\nsent for encashment, the same was dishonoured due to insufficient funds in the
\nbank account and returned to the respondent \/ complainant on 16.09.2006. On
\n27.09.2006, the respondent \/ complainant sent a legal notice to the petitioner \/
\naccused demanding the cheque amount. According to the respondent, having
\nreceived the legal notice, without making any payment, the petitioner sent a
\nreply with false averments, hence, the criminal complaint was filed by the
\nrespondent before the court below.\n<\/p>\n
\t4. From the copy of the criminal miscellaneous petition, it is seen that
\nthe petitioner \/ accused filed the aforesaid petition before the court below,
\nseeking the following relief :\n<\/p>\n
“Hence, it is most humbly prayed that this Hon’ble Court be pleased to send the
\ncheque for comparison with the specimen to the hand writing expert in the
\ninterest of justice.”\n<\/p>\n
\t5. It is an admitted fact that the petitioner \/ accused had sought an
\norder to send the cheque relating to this case for expert opinion for comparison
\nwith the specimen. It is an admitted fact that after the closing of
\ncomplainant’s evidence, the case was posted for questioning the accused under
\nSection 313 Cr.P.C, subsequently, the petitioner \/ accused examined herself as
\nD.W.1. As per the certified copy of the deposition, it is made clear that the
\npetitioner has admitted her signature available in the cheque. According to her,
\nthere was one saju, son of one Gopala Panicker, working in her house as driver,
\nwho was attending her house hold work and he used to commit theft of small
\namounts, hence, he was sent out from her house. According to the petitioner \/
\naccused, she had handed over the signed blank cheque to the said saju for making
\ncertain payments, later on , she came to know that one of the said cheques was
\nmisused for the purpose of filing this case. In her cross-examination, the
\npetitioner has not denied her signature available in the dishonoured cheque,
\nhowever, she has stated that the cheque was not filled up by her.\n<\/p>\n
\t6. According to the petitioner, the respondent \/ complainant was a
\nstranger to her. On the other hand, the complainant has stated in his evidence
\nthat he is a relative and was close to the petitioner \/ accused for number of
\nyears, hence on 01.07.2006, he paid Rs.2 lakhs as hand loan to the petitioner \/
\naccused to attend her urgent needs, for which she issued a cheque, dated
\n07.08.2006. According to him, it was filled up and signed only by her.\n<\/p>\n
\t7. In the deposition, the petitioner \/ accused has stated that her husband
\nwas working in a hospital, attached to the rubber corporation as Pharmacist and
\nthat she has estate of 8 acres of rubber plants, apart from two other acres of
\nland. As per her evidence, it is seen that she was managing the estate with the
\nhelp of servants and she is not an illiterate person.\n<\/p>\n
\t8. As contended by the learned counsel appearing for the respondent, the
\ndefence raised by the petitioner that she had handed over a signed blank cheque
\nto her servant, who was working as her car driver to make some payment could not
\nbe accepted, considering her status and other factors. Learned counsel appearing
\nfor the respondent also drew the attention of this court to the copy of the
\nreply notice sent by the petitioner to the respondent, wherein she has not
\nstated that a blank signed cheque was handed over to the said saju, who was a
\ncar driver of the petitioner \/ accused. Learned counsel appearing for the
\nrespondent submitted that the defence raised by the petitioner \/ accused
\nbelatedly is only an after thought to protract the proceedings initiated under
\nSection 138 of Negotiable Instruments Act.\n<\/p>\n
\t9. In State of Maharashtra vs. Sukhdeo Singh reported in AIR 1992 SC 2100,
\nthe Hon’ble Apex Court has held as follows :\n<\/p>\n
“Court should be slow to compare disputed document with admitted document for
\ncomparison although section 73 empowers the court to compare disputed writings
\nwith the specimen \/ admitted documents shown to be genuine. Prudence demands
\nthat Court should be extremely slow in venturing an opinion on the basis of mere
\ncomparison, more so, when the quality of evidence in respect of specimen \/
\nadmitted writings is not of high standard.”\n<\/p>\n
\t10. In T.Nagappa vs. Y.R.Muralidhar<\/a> reported in 2008 (5) SCC 633, the
\nHon’ble Apex Court has held that though there could be presumption drawn under
\nSection 118 (a) or 139 of Negotiable Instruments Act, when there is a defence
\nraised by the accused that the complainant had misused the cheque, opportunity
\nmust be given to the accused for adducing evidence, in rebuttal thereof. Since
\nthe law places burden on the accused, he must be given an opportunity to
\ndischarge the burden. The Hon’ble Apex Court has further held as follows :
\n“8.An accused has a right to fair trial. He has a right to defend himself as a
\npart of his human as also fundamental right as enshrined under Article 21 of the
\nConstitution of India.  The right to defend oneself and for that purpose to
\nadduce evidence is recognised by Parliament in terms of sub-section (2) of
\nSection 243 of the Code of Criminal Procedure, which reads as under:
\n\t“243. Evidence for defence  -(1)
\n\t(2) If the accused, after he has entered upon his defence, applies to the
\nMagistrate to issue any process for compelling the attendance of any witness for
\nthe purpose of examination or cross-examination, or the production of any
\ndocument or other thing, the Magistrate shall issue such process unless he
\nconsiders that such application should be refused on the ground that it is made
\nfor the purpose of vexation or delay or for defeating the ends of justice and
\nsuch ground shall be recorded by him in writing:\n<\/p>\n
\tProvided that, when the accused has cross-examined or had the opportunity
\nof cross-examining any witness before entering on his defence, the attendance of
\nsuch witness shall not be compelled under this section, unless the Magistrate is
\nsatisfied that it is necessary for the ends of justice.”\n<\/p>\n
\t9.What should be the nature of evidence is not a matter which should be
\nleft only to the discretion of the Court.  It is the accused who known how to
\nprove his defence.  It is true that the Court being the master of the
\nproceedings must determine as to whether the application filed by the accused in
\nterms of sub-section (2) of Section 243 of the Code is bona fide or not or
\nwhether thereby he intends to being on record a relevant material.  But
\nordinarily an accused should be allowed to approach the court for obtaining its
\nassistance with regard to summoning of witnesses, etc. If permitted to do so,
\nsteps therefor, however, must be taken within a limited time.  There cannot be
\nany doubt whatsoever that the accused should not be allowed to unnecessarily
\nprotract the trial or summon witnesses whose evidence would not be at all
\nrelevant.”\n<\/p>\n
\t11. In  Kalyani Baskar vs. M.S.Sampoornam<\/a> reported in 2007 (2) CTC 364,
\nthe Hon’ble Apex Court has held as follows :\n<\/p>\n
“12.Section 243(2) is clear that a Magistrate holding an inquiry under the
\nCr.P.C. in respect of an offence triable by him does not exceed his powers under
\nSection 243(2) if, in the interest of justice, he directs to send the document
\nfor enabling the same to be compared by a hand-writing expert because even in
\nadopting this course, the purpose is to enable the Magistrate to compare the
\ndisputed signature or writing with the admitted writing or signature of the
\naccused and to reach his own conclusion with the assistance of the expert.  The
\nappellant is entitled to rebut the case of the respondent and if the document
\nviz. the cheque on which the respondent has relied upon for initiating criminal
\nproceedings against the appellant would furnish good material for rebutting that
\ncase, the Magistrate having declined to send the document for the examination
\nand opinion of the hand-writing expert has deprived the appellant of an
\nopportunity of rebutting it.  The appellant cannot be convicted without an
\nopportunity being given to her to present her evidence and if it is denied to
\nher, there is no fair trial. ‘Fair trial’ includes fair and proper opportunities
\nallowed by law to prove her innocence.  Adducing evidence in support of the
\ndefence is a valuable right.  Denial of that right means denial of fair trial.
\nIt is essential that rules of procedure designed to ensure justice should be
\nscrupulously followed, and Courts should be jealous in seeing that there is no
\nbreach of them.  We have not been able to appreciate the view of the learned
\nJudge of the High Court that the petitioner has filed  application under Section
\n243, Cr.P.C. without naming any person as witness or anything to be summoned,
\nwhich are to be sent for handwriting expert for examination.  As noticed above,
\nSection 243(2), Cr.P.C. refers to a stage when the prosecution closes its
\nevidence after examining the witnesses and the accused has entered upon his
\ndefence.  The appellant in this case requests for sending the cheque, in
\nquestion, for the opinion of the hand-writing expert after the respondent has
\nclosed her evidence, the Magistrate should have granted such a request .”\n<\/p>\n
\t12. This Court relying on the decision rendered by the Hon’ble Apex Court
\nin  Kalyani Baskar vs. M.S.Sampoornam<\/a> reported in 2007 (2) CTC 364 and the
\ndecision rendered by this Court in Ramakrishnan P.R vs. P.Govindarajan<\/a> reported
\nin 2007 (1) MLJ (Crl) 1297, (M.Jeyapaul,J) rejected the plea of the accused to
\nsend the cheque for expert opinion to find out the age of the ink used in the
\ncheque.\n<\/p>\n
\t13. In P.Arumugam vs. Rajamani,<\/a> reported in 2007 (1) LW (Crl) 491, relying
\non the decision rendered by the Hon’ble Apex Court in Kalyani Baskar vs.
\nM.S.Sampoornam<\/a> reported in JT 2007 (1) SC 77, this Court (K.N.Basha, J) allowed
\nthe revision petition and directed the Court below to send the disputed document
\nfor expert opinion.\n<\/p>\n
\t14. The decisions of this Court referred to above, seem to be contra, but
\nthe cases have been decided differently by the two learned Judges of this Court,
\nonly based on the rulings of the Hon’ble Apex Court, on the available materials
\nand admitted facts and circumstances of each case. Therefore, I am of the view
\nthat there is no contradiction in the view taken by two learned Judges of this
\nCourt.\n<\/p>\n
\t15. In Kalyani Baskar vs. M.S.Sampornam,<\/a> reported in  2007 (2) CTC 364 and
\nT.Nagappa vs. Y.R.Muralidhar<\/a> reported in 2008 (5) SCC 633, the Hon’ble Supreme
\nCourt has categorically held that reasonable opportunity must be given to the
\naccused to discharge his burden. It is not in dispute that under Sections 118\n<\/p>\n
(a) and 139 of Negotiable Instruments, the Court can draw legal presumption,
\nhowever, the same is only a rebuttable presumption.\n<\/p>\n
\t16. It is seen that Section 118 (a) of Negotiable Instruments Act reads as
\nfollows :\n<\/p>\n
“118 Presumptions as to negotiable instruments – Until the contrary is proved,
\nthe following presumption shall be made : –\n<\/p>\n
(a) of consideration – that every negotiable instrument was made or drawn for
\nconsideration, and that every such instrument, when it has been accepted,
\nindorsed, negotiated or transferred, was accepted, indorsed, negotiated or
\ntransferred for consideration.”\n<\/p>\n
\t17. Similarly, Section 139 of Negotiable Instruments Act reads thus :
\n“139. Presumption in favour of holder – It shall be presumed, unless the
\ncontrary is proved, that the holder of a cheque received the cheque, of the
\nnature referred to in section 138, for the discharge, in whole or in part, of
\nany debt or other liability.”\n<\/p>\n
\t18. It is well settled that there is a presumption of execution of the
\ninstrument under the Negotiable Instruments Act, if the signature available in
\nthe dishonoured cheque is admitted by the person, who issued the same, however,
\nthe accused is entitled to adduce rebuttal evidence, as it is a rebuttable
\npresumption and no one shall be convicted without providing reasonable
\nopportunity to adduce rebuttal evidence and to disprove the legal presumption.
\nIt is a settled proposition of law that “fair trial” includes fair and
\nreasonable opportunity being given, in spite of the legal presumption under the
\nNegotiable Instruments Act, in order to prove the innocence of the accused.
\nHowever, it has been made clear by the Hon’ble Apex Court that no person shall
\nabuse the process of the court by deliberately adopting delay tactics.\n<\/p>\n
\t19. The Hon’ble Apex Court in T.Nagappa’s case has categorically held that
\nright to defend is a fundamental right as enshrined under Article 21 of the
\nConstitution of India and the right to defend oneself, for that purpose to
\nadduce evidence is recognised by the Parliament, as per sub-section (2) of
\nSection 243 of the Code of Criminal Procedure. However, it is well settled that
\nno one is entitled to adopt delay tactics or abuse the process of law or the
\ncourt under the guise of reasonable opportunity.\n<\/p>\n
\t20. In Kalyani Baskar’s case, the Hon’ble Supreme Court has categorically
\nheld that the Magistrate, empowered to consider the plea  for sending the cheque
\nfor the opinion of any hand writing expert has to order for expert opinion,
\nunless he thinks that the object of the appellant is vexation or delaying the
\ncriminal proceeding. If the object of the accused is apparent that he is
\nadopting delay tactics, without any justifiable reason, the Magistrate has to
\nreject the request for sending the document for expert opinion. It is the
\njudicial discretion of the Magistrate, who has to decide the issue based on the
\nadmitted facts and circumstances. If there is no delay tactics and the request
\nis bonafide, it is the duty of the the Magistrate to send the document for
\nexpert opinion. If there is apparent delay tactics, adopted by the petitioner \/
\naccused, in order to cause delay and to protract the criminal proceeding, it has
\nto be construed an abuse of process of the Court and accordingly, the request
\nhas to be rejected by the Magistrate, as ruled by the Hon’ble Apex Court in
\nvarious decisions.\n<\/p>\n
\t21. In the instant case, after the dishonour of the cheque on the ground
\nof insufficient funds, the respondent \/ complainant had issued a legal notice
\nstating the details of issuance of the cheque by the petitioner \/ accused in
\nfavour of the respondent \/ complaint.  The legal notice was received by the
\npetitioner \/ accused and she has raised a defence, stating that the respondent \/
\ncomplainant was a stranger to her. However, from the copy of the deposition of
\nthe petitioner \/ accused, it is seen that she has admitted that her elder
\nbrother was one Thopias. However, in the cross-examination, the petitioner has
\nreplied that she does not know whether her maternal uncle has four children or
\nnot, though she was  cordial in attending the marriage of Rani, daughter of her
\nsaid maternal uncle, Thopias. She has further stated that she does not know
\nSaviour, husband of the said Rani, who is the sister’s son of the complainant,
\nRamasamy. In her evidence, she has categorically stated that she had handed over
\nsigned blank chegue to one, Saju, her car driver, that was misused by the
\nrespondent \/ complainant, a stranger. However, she has not stated anything about
\nthe same in her reply notice for the reasons best known to her. As contended by
\nthe learned counsel appearing for the respondent, the petitioner has raised a
\ndefence without raising the same in her reply notice, even without stating the
\nsame, while she was questioned under Section 313 Cr.P.C.\n<\/p>\n
\t22. Similarly, it is clear from the copy of the deposition of the
\npetitioner as D.W.1 that though the petitioner was cordial in attending the
\nmarriage of uncle’s daughter, Rani, in order to avoid the close relationship of
\nthe said Rani with the complainant and to maintain her stand that the
\ncomplainant was a total stranger to her, the petitioner has gone to the extend
\nof saying that she does not know whether her maternal uncle, Thpias has four
\nchildren or not.\n<\/p>\n
\t23. Only after the closure of the complainant’s evidence,  questioning
\nunder Section 313 Cr.P.C and also after her defence evidence, she has come
\nforward with a petition, seeking an order to send the document for expert
\nopinion. It is well settled as per Indian Evidence Act that admissions needs no
\nproof. In the instant case, the petitioner \/ accused has not disputed her
\nsignature available in the cheque.\n<\/p>\n
\t24. Even as per the petition filed in the aforesaid criminal miscellaneous
\npetition, she has simply stated that the cheque be sent for comparison with the
\nspecimen. Having a rubber estate, administering the estate with the help of
\nworkers, including car driver, the petitioner could not have issued a signed
\nblank cheque to her driver, who had already committed small thefts, according to
\nher. Being a normal prudent person, administrator of a Rubber Estate, she was
\naware that there was a possibility that any amount be filled up in favour of any
\nperson, if she hand over a blank signed cheque to her driver. Even if it is so,
\nnothing could have  prevented her from stating the defence atleast in her reply
\nnotice. The aforesaid conduct of the petitioner \/ accused coupled with the delay
\ncaused in various stages would show that the object of the petitioner is not
\nbonafide, which could be construed by the Court as vexation or delaying the
\ncriminal proceedings, as held by the Hon’ble Apex Court in Kalyani Baskar’s
\ncase.\n<\/p>\n
\t25. It is a settled proposition of law that reasonable opportunity must be
\ngiven to the accused for fair trial to adduce rebuttal evidence, as there is
\npossibility of legal presumption under Negotiable Instruments Act. However,
\napparent abuse of process of court in adopting delay tactics cannot be permitted
\nby any court. Whether the relief sought for is to prove the innocence of the
\npetitioner \/ accused or adopting only delay tactics could be legally inferred by
\nthe Court, only by the conduct of the party, which is revealed by the admitted
\nfacts and undisputed materials available on record.\n<\/p>\n
\t26. The Court has to take judicial notice that all developed countries are
\nmostly encouraging cheque transactions, as the same is essential for commercial
\nand economic development and encouraging cheque transactions would also
\nconsiderably prevent tax evasion. The frivolous defence raised that by any
\nperson adopting delay tactics and protract the case filed under Section 138 of
\nNegotiable Instruments Act, for decades together would certainly discourage the
\ncheque transactions in general and therefore, I am of the view that it is the
\nduty of the courts to decide the issued based on the undisputed factual aspects
\nscrupulously to decide whether the request of the petitioner to send the
\ndisputed document for expert opinion is bonafide or vexation or delaying the
\ncriminal proceedings, as ruled by the Hon’ble Apex Court and accordingly, just
\nand proper order be passed.\n<\/p>\n
\t27. Having the required educational qualification, economic status,
\ndealing with cheque transactions and administrating Rubber Estate, no reasonable
\nprudent person could raise a defence that signed blank unfilled cheques were
\nhanded over to a car driver or signed unfilled cheque was kept, that was lost
\nduring transit and that was misused by the complainant. Unfortunately, the same
\nis a general defence in the cases relating to Negotiable Instruments Act, though
\nthe same could not be accepted by any reasonable prudent person. Even if such a
\ndefence is raised, it could not be an after thought with a view to protract a
\ncriminal proceeding, as ultimately it would be an abuse of process of the court,
\nfor which no one is entitled.\n<\/p>\n
\t28. If the object of the petitioner is vexation or delaying the criminal
\nproceedings, to meet the ends of justice, the Court, in order to prevent the
\nabuse of adopting delay  tactics, has to dismiss the same.  In  the  instant
\ncase,  I  am of the view that there is no bonafide reason available in favour of
\nthe petitioner \/ accused, to allow the petition and the learned Magistrate,
\nconsidering the facts and circumstances of this case properly, has rightly
\ndismissed the petition. On the aforesaid circumstance, I am of the view that
\nthere is no scope for interference of this Court in the impugned order and
\naccordingly, the criminal revision is liable to be dismissed.\n<\/p>\n
\t29. In the result, this criminal revision petition is dismissed.
\nConsequently, connected miscellaneous petition is also dismissed. The Court
\nbelow is directed to dispose the case, solely on merits, according to law,
\nuninfluenced by the findings of this Court in this revision, within a period of
\ntwo months from the date of receipt of a copy of this order, without causing
\nfurther delay.\n<\/p>\n
tsvn<\/p>\n
To<\/p>\n
To
\nThe Judicial Magistrate,
\nPadmanabhapuram
\nKanyakumari District.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Prema vs D.Ramaswamy on 23 December, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 23\/12\/2010 Coram The Honourable Mr. Justice S.TAMILVANAN Crl.R.C (MD).No.464 of 2010 and M.P.(MD).No.1 of 2010 Prema ….. Petitioner vs. D.Ramaswamy ….. Respondent Criminal Revision Case filed under Section 397 r\/w 401 of Criminal Procedure Code against […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-197706","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nPrema vs D.Ramaswamy on 23 December, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/prema-vs-d-ramaswamy-on-23-december-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Prema vs D.Ramaswamy on 23 December, 2010 - 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