Allowed

Nandkumar Rajkumar Harane v. Vishwas Vilasrao Kshirsagar and Anr.

Bombay HC4 Aug 2011WP/190/2011

Case brief

AI extract

What is this about?

In a writ petition under Article 227, this Court allowed the petitioner/accused's prayer to refer disputed loan documents and the complainant's admitted handwriting to a Government Handwriting Expert. Two lower court orders were quashed.

What did the court decide?

The application to refer the chit, diary, and admitted handwriting to the Government Handwriting Expert is allowed; the expert must submit the opinion within one month.

Nandkumar Rajkumar Harane Vs Vishwas Vilasrao… — Civil Procedure and Limitation | Bombay HC (2011)

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(1)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

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CRIMINAL WRIT PETITION NO. 190 OF 2011

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Nandkumar s/o. Rajkumar Harane, Age : 28 years, Occupation : Business, R/o. Main Road, Ausa, .. Petitioner Taluka : Ausa, District : Latur. (Original accused)

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versus

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Vishwas s/o. Vilasrao Kshirsagar, Age : 40 years, Occupation : L.I.C. Agent, R/o. Someshwar Colony, Latur, .. Respondents District : Latur. (No.1 - Original complainant)

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The State of Maharashtra.

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Mr. S.P. Katneshwarkar, Advocate, for the petitioner.

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Mr. B.V. Thombre, Advocate, for respondent no.1.

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Mr. D.R. Korde, Additional Public Prosecutor, for respondent no.2.

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(2)

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CORAM : SHRIHARI P. DAVARE, J.

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DATE : 4TH AUGUST 2011

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ORAL JUDGMENT :

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Heard learned Counsel for the parties.

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Rule. Rule made returnable forthwith. With the consent of learned Counsel for parties, taken up for final hearing.

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By the present petition filed by the petitioner (original accused) under Article 227 of the Constitution of India, has prayed that the impugned order dated 7-1-2011, in Criminal Revision No. 114 of 2010, passed by the learned Additional Sessions Judge, Latur, confirming the order passed by the learned Judicial Magistrate (First Class), 5th Court, Latur, below Exhibit 48 in S.T.C.C. No. 1734/2009, dated 11-6-2010, be quashed and set aside, and the application filed by the petitioner herein, below Exhibit 48, be allowed.

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Parties hereinafter are referred to as per their original status i.e. accused and complainant.

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(3)

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FACTUAL MATRIX

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The petitioner herein is the original accused and the respondent no.1 herein is the original complainant who filed complaint against the petitioner under Section 138 of the Negotiable Instruments Act, 1881, bearing S.T.C.C. No. 1734/2009, which is pending before the learned Judicial Magistrate (F.C.), 3rd Court, Latur. It is alleged in the said complaint, that the complainant and accused are friends of each other, and the accused is running business at Patil Plaza, Latur, CDs and VCDs, and he is proprietor of Nandraj Cellular. It is also alleged that on 2nd June 2009, accused approached the complainant and demanded Rs. 60,000/- as hand loan for his business. Thereupon, the complainant assured him that he would arrange the said amount within a period of 8 days. Accordingly, on 10th June 2009, accused again approached the complainant and asked for the above referred loan amount. Accordingly, as per need of the accused, complainant paid Rs. 60,000/- to the accused as hand loan and the accused also acknowledged the said amount by executing a receipt in favour of the complainant and assured to repay the said amount within a period of three months. Accused also issued cheque No. 002207 drawn on Axis Bank Ltd., Branch Latur, dated 10-9-2009, to the complainant and assured that the cheque would be honoured. Accordingly, the

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(4)

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complainant presented the said cheque for encashment purpose. However, the said cheque was dishonoured and returned unpaid with the endorsement, "insufficient funds", on 11-9-2009. Thereafter, the complainant issued demand notice to the accused on 15-9-2009. However, accused failed to repay the said cheque amount to the complainant. Hence, the complainant filed complaint against the accused under Section 138 of the Negotiable Instruments Act on 6-10-2009, before learned Judicial Magistrate (F.C.), Latur.

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Accordingly, the complainant adduced / produced his evidence to substantiate his case, and thereafter filed Pursish of closure of evidence at Exhibit 43. On the said background, the accused also adduced and produced his evidence and thereafter filed an application below Exhibit 48, contending therein that the complainant is illegally doing the business of money lending and the accused has obtained loan of Rs. 20,000/- from him on 26-2-2009 and Rs. 10,000/- on 5-6-2009 on interest and handed over blank cheque to the complainant towards the security of the said transaction, and also contended that the accused has repaid earlier loan of Rs. 20,000/-, and he has also paid Rs. 5,000/towards repayment of another loan of Rs. 10,000/- till 4-8-2009 along with interest thereon. It is the contention of the accused that the complainant himself used to maintain diary of the said

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(5)

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loan transaction by making entry of daily collection received from the accused towards repayment of the loan amount. The complainant also gave a chit to the accused which is in his own handwriting. In the said context, it is the contention of the petitioner, that the said document i.e. diary and chit were confronted to the complainant during cross examination, but he denied handwriting thereon. Hence, the petitioner herein made prayer in the said application Exhibit 48, that the document nos.1 and 2, below list Exhibit 29, be referred to the handwriting expert for verification / opinion, along with handwriting of the complainant, to rebut the presumption. However, learned Judicial Magistrate (F.C.), Court No.6, Latur, rejected the said application Exhibit 48 by passing order on 11th June 2010.

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Being aggrieved and dissatisfied by the said order dated 11th June 2010, the petitioner herein preferred Criminal Revision No. 114/2010 before the learned Sessions Court, Latur, on 9-9-2010. However, the said Criminal Revision also came to be dismissed by the learned Additional Sessions Judge, Latur, by order dated 7th January 2011.

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Hence, the petitioner has approached this Court in its extraordinary jurisdiction under Article 227 of the Constitution of India, and assailed above referred both the orders, and prayed

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(6)

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that the application Exhibit 48, preferred by the petitioner herein, be allowed.

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SUBMISSIONS

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Learned Adv. Mr. S.P. Katneshwarkar, for the petitioner, submits that it is necessary to send the documents i.e. diary and chit, Exhibits 29/1 and 29/2 to the handwriting expert for his opinion since the said documents were confronted to the complainant during cross examination and he denied his handwriting thereon, and report of the handwriting expert in respect of the said documents is vital and necessary for the petitioner, to rebut the presumption raised against him under Section 118(a) and 139 of Negotiable Instruments Act, and to probabalise his defence. It is also submitted by the learned Counsel for the petitioner, that due opportunity is required to be given to the accused / petitioner to produce / adduce the evidence to substantiate his defence, and if said documents i.e. Exhibits 29/1 and 29/2 are not sent to the handwriting expert for expert's opinion, same would cause great prejudice to him. It is also canvassed by the learned Counsel for the petitioner, that the reasoning given by the learned trial court while rejecting the application Exhibit 48 is not in tune with the legal position, as well as, it is submitted that the approach adopted by the learned Sessions Court, that the handwriting on the said documents of the

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(7)

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complainant, and specimen handwriting of the complainant can be compared by the learned Judicial Magistrate (F.C.) under Section 73 of the Indian Evidence Act, 1872, also cast burden upon the learned Judicial Magistrate (F.C.) since it is expected that the powers under Section 73 of the Evidence Act are to be exercised sparingly.

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Learned Counsel for the petitioner also relies upon judicial pronouncement of Hon. Apex Court, in the case of T. Nagappa Vs. Y.R. Muralidhar , reported at 2008 ALL MR (Cri) 1945 (S.C.) , wherein Hon. Apex Court has observed thus :

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" What should be the nature of evidence is not a matter which should be left only to the discretion of the Court. It is the accused who knows how to prove his defence. It is true that the Court being the master of the proceedings must determine as to whether the application filed by the accused in terms of sub-section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the Court for obtaining its assistance with regard to summoning of witnesses etc. If permitted to do so, steps therefor, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should

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(8)

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not be allowed to unnecessarily protecting the trial or summon witnesses whose evidence would not be at all relevant. "

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Hon. Apex Court, in the said ruling, has further observed thus :

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" The issue now almost stands concluded by a decision of this Court in Kalyani Baskar (Mrs.) Vs. M.S. Sampoornam (Mrs.) [(2007) 2 SCC 258 : 2007 ALL MR (Cri) 820 (S.C.)] (in which one of us, L.S. Panta, J., was a member) wherein it was held :

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"12. Section 243(2) is clear that a Magistrate holding an inquiry under 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 handwriting expert 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

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(9)

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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 zealous in seeing that there is no breach of them. "

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Besides, learned Counsel for the petitioner, on instructions, categorically made statement that the petitioner herein waived the prayer No.2 of application Exhibit 48, and prays that the prayer No.1 of the said application be allowed i.e. document Nos.1 and 2 below list Exhibit 29 be referred to the handwriting expert for verification / opinion along with by obtaining handwriting of the complainant before the court, and further states that the document No.1 below Exhibit 29 is the chit of transaction which is given Exhibit 58 by the learned trial court

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(10)

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and document No.2 below Exhibit 29 is the diary of transaction which is given Exhibit 57 by the learned trial court, and the said statement is accepted and taken on record.

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Accordingly, learned Counsel for the petitioner has urged that the application Exhibit 48, preferred by the petitioner / accused before the learned trial court, to the extent of prayer No. 1 thereof, is required to be granted in the interest of justice.

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The respondent no.1 has also filed his reply to the present petition and denied the averments in the present petition unless admitted specifically.

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Learned Adv. Mr. B.V. Thombre, for respondent no.1, has opposed the aforesaid arguments, and opposed the present petition vehemently, and submitted that the complainant issued demand notice to the accused on 15-9-2009 after dishonour of cheque, but the accused did not reply to the said notice. Hence, thereafter, since the accused did not make payment of the said cheque, the complainant filed complaint before the learned trial court on 6-10-2009 under Section 138 of the Negotiable Instruments Act. The petitioner preferred the application at Exhibit 48 on 13-4-2010, which came to be rejected on 11-6-2010. Thereafter, petitioner filed revision before the learned

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(11)

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Sessions Court after lapse of about three months i.e. on 9-9-2010. The said revision also came to be dismissed on 7-1-2011. However, thereafter, petitioner preferred the present petition after lapse of about two months i.e. on 8-3-2011, and it is submitted that even on 2-12-2010, evidence of accused was forfeited and the present stage of trial before the learned trial court is for final arguments. Accordingly, learned Counsel for respondent no.1 submitted that almost two years have been elapsed after lodging the complaint and the trial of the said complaint has been protracted at the instance and at the behest of the accused, although it is contemplated under Section 143(2) and (3) of the Negotiable Instruments Act, that the trial of the complaint under Section 138 be conducted on day-to-day basis, so far as it is practicable and to be expedited and concluded within a period of six months from the date of filing of the complaint, and endeavor be made to conclude the said trial within a period of six months from the date of filing of the said complaint.

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Learned Counsel for respondent no.1 has further canvassed that the learned trial court rightly rejected the application Exhibit 48 preferred by the accused since the complainant had denied his handwriting on the said documents when confronted during cross examination. It is also canvassed by the learned Counsel for respondent no.1, that even revision

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(12)

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preferred by the accused has no substance and the same has been rightly dismissed by the learned Sessions Court observing that the provision of Section 73 of the Evidence Act can be invoked and disputed handwriting and admitted handwriting of the complainant can be compared by the learned Judicial Magistrate (F.C.) and there is no necessity to send the said documents for the opinion of handwriting expert. Learned Counsel for respondent no.1 has further posed apprehension that if the application preferred by the petitioner Exhibit 48 is granted, even to the extent of prayer No.1 thereof, as submitted by the learned Counsel for the petitioner, and documents are sent to the handwriting expert for opinion, it may consume time to receive opinion of the handwriting expert and trial of the complainant's complaint would be protracted further, which is not in consonance with the spirit of Section 143, Sub-Sections 1 and 2, of the Negotiable Instruments Act.

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Learned Counsel for respondent no.1 has relied upon judgment of learned Single Judge of this Court, in the case of Prakash Sevantilal Vora Vs. The State of Maharashtra & another , reported at 2011 CRI. L.J. 2207 , and also on the judgment of learned Single Judge of Madras High Court, in the case of S. Gopal Vs. D. Balachandran , reported at 2008 Crime . Reports 26

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(13)

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CONSIDERATION

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At the outset, coming to the very application Exhibit 48, preferred by the accused before the learned trial court, on 13-4-2010, wherein it is categorically averred by the accused, as under :

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" The defence of the accused is that the complainant is doing money lending business, illegally and accused has obtained loan from the complainant for Rs. 20,000/-, dated 26-2-2009, and Rs. 10,000/-, dated 5-6-2009 on interest and for that he has issued disputed blank signed cheque only by way of security.

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That, further defence of the accused is that, accused has paid earlier loan of Rs. 20,000/- and also he has paid Rs. 5000/- to the complainant towards the repayment of loan amount of Rs. 10,000/- till 4-8-2009 along with interest.

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That, the complainant himself is maintaining diary of said loan transaction by making entry of

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(14)

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daily collection amount from the accused towards the repayment of loan amount of Rs. 20,000/- and Rs. 10,000/- and also given one chit in his own handwriting."

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It is also averred in the said application, that during cross examination of the complainant, accused has confronted said diary and chit, below Exhibits 29/1 and 29/2, to the complainant, but he has denied that these documents as are not written by him. Hence, since the said documents Exhibits 29/1 and 29/2 were duly referred to the complainant during cross examination and since the complainant denied the handwriting thereof categorically, it is necessary to send the said documents and admitted handwriting of the complainant, to the handwriting expert for obtaining expert's opinion in the interest of justice, to enable the accused to substantiate his defence and to rebut the presumption raised against him under Section 118(a) and 139 of the Negotiable Instruments Act in proper perspective.

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Moreover, as observed by the Hon. Apex Court, in the case of T. Nagappa Vs. Y.R. Muralidhar (supra) , what should be the nature of the evidence of the petitioner / accused should be left open to him, and accused knows how to prove his defence and ordinarily accused should be allowed to approach the Court

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(15)

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for obtaining its assistance with regard to summoning of witnesses etc. In the instant case, since the accused preferred application Exhibit 48, requesting to send the documents at Exhibits 29/1 and 29/2, bearing disputed handwriting of the complainant, along with the admitted handwriting of the complainant, for obtaining handwriting expert's opinion, in fact, which should have been allowed by the learned trial court or, at least, by the learned Sessions Court, in the revision, to meet the ends of justice. However, simultaneously, there is no doubt that the accused should not be permitted to protract the trial unnecessarily. Hence, the apprehension posed by the respondent no.1, in respect of protracting the trial by the accused, can be met with by giving specific directions to the handwriting expert to submit the expert's opinion within stipulated period and thereby, endeavor can be made to achieve the spirit of Section 143, SubSections 2 and 3, of the Negotiable Instruments Act.

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As regards argument canvassed by the learned Counsel for respondent no.1, in respect of Section 73 of the Evidence Act, it is material to note that both the said documents Exhibits 29/1 and 29/2 were confronted to the complainant during cross examination and handwriting thereon was denied by the complainant, and therefore, it is not advisable and desirable also, to cast burden upon learned Judicial Magistrate (F.C.) to

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(16)

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compare handwriting on the said documents and admitted handwriting of the complainant, since the caution under Section 73 of the Evidence Act cannot be overlooked and it is guiding principle that the court should be slow to compare disputed document with admitted document for comparison although section 73 empowers the court to compare disputed writings with the specimen / admitted documents shown to be genuine. Moreover, prudence demands that court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen / admitted writings is not of high standard. Therefore, despite no legal bar to Judge using his eyes, the Judge should hesitate to base his findings with regard to identity of handwriting solely on comparison made by himself. Hence, it is necessary to send two documents at Exhibits 29/1 and 29/2, and the admitted handwriting of the complainant, to the handwriting expert for obtaining expert's opinion, to meet the ends of justice and to enable the accused to substantiate his defence before the court properly.

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As regards the judicial pronouncement relied upon by the learned Counsel for respondent no.1, in the case of Prakash Sevantilal Vora Vs. The State of Maharashtra & another , it is apparent that the said case pertains to the application preferred by

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(17)

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the accused for sending the disputed cheque to the handwriting expert in respect of alleged alteration thereon and it was observed that it was not necessary to send the cheque to handwriting expert for that purpose and accordingly, the said application came to be dismissed, finding that it was preferred to protract the trial. But so is not the position in the instant case, and in the present case, accused has preferred the application to send the documents at Exhibits 29/1 and 29/2 i.e. diary and chit along with admitted handwriting of the complainant, to the handwriting expert for comparison and for obtaining his opinion, and there is no prayer of the accused to send any cheque to the handwriting expert for obtaining his opinion in respect of alterations therein, and hence, the observations made in the case, cited supra, and the ratio laid down therein will not be applicable in the instant case, and same will not be of any aid and assistance to the complainant herein. Moreover, since directions are being issued that the handwriting expert's opinion be called within specified time frame, there is no question of protracting the trial on the said count and even the said apprehension of respondent no.1 is also being met with.

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As regards the ruling cited by the learned Counsel for respondent no.1, in the case of S. Gopal Vs. D. Balachandran (supra), wherein also, it is observed that there is no necessity to send disputed cheque for expert's opinion to determine the age of

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ink of the signature, since signature found therein had been categorically admitted by the petitioner, but again, so is not the position in the instant case, and in the present case, there is no prayer of the accused to send the cheque to handwriting expert for examination purpose, but the prayer of the accused is to send documents at Exhibits 29/1 and 29/2 and admitted handwriting of the complainant for comparison purpose and for obtaining opinion of the handwriting expert, and hence, the said ruling also cannot be of any help to the case of respondent no.1.

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In the circumstances, present petition deserves to be allowed, by exercising extraordinary jurisdiction of this Court under Article 227 of the Constitution of India, and by quashing and setting aside the order passed by the learned trial court, as well as, order passed by the learned Sessions Court, and the application Exhibit 48, preferred by the accused, also deserves to be allowed to the extent of prayer clause 1 thereof, but simultaneously, it is required to be directed to the handwriting expert to submit his opinion within stipulated time frame.

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In the result, present Petition is allowed, and the order passed by the learned Judicial Magistrate (F.C.), Court No.6, Latur, below Exhibit 48, in S.T.C. No. 1734/2009, dated 11th June 2010, and also the order passed by the learned Additional

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(19)

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Sessions Judge, Latur, in Criminal Revision No. 114/2010, dated 7th January 2011, stand quashed and set aside, and the application Exhibit 48, dated 13-4-2010, preferred by the petitioner / accused, in S.T.C. No. 1734/2009, stands allowed to the extent of prayer clause 1 thereof, and it is directed that the document No.1 below Exhibit 29 i.e. "chit of transaction", and document No.2 below Exhibit 29 i.e. "diary of the transaction", and the admitted handwriting of the complainant which is to be obtained by the learned Trial Court before it from the complainant, be sent to the Government Handwriting Expert for obtaining the expert's verification / opinion in respect of the disputed handwriting on Exhibits 29/1 and 29/2, and the said Government Handwriting Expert is directed to submit his opinion within a period of one month from the date of receipt of the aforesaid documents to the said office, scrupulously, and the petitioner / accused is directed to deposit the amount of Rs. 1000/- (Rupees one thousand) tentatively before the learned Trial Court towards charges of the handwriting examination, and the learned Trial Court is also requested to expedite hearing of the said trial after receipt of the said report of the Handwriting Expert.

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(20)

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Rule is made absolute in the aforesaid terms.

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( SHRIHARI P. DAVARE ) JUDGE

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bgp/190kwp

Nandkumar Rajkumar Harane v. Vishwas Vilasrao Kshirsagar and Anr.

Case brief

What is this about?

What did the court decide?

Nandkumar Rajkumar Harane v. Vishwas Vilasrao Kshirsagar and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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