Allowed

Rajkishore Parida v. Akshaya Kumar Nayak

Orissa HC19 Aug 2016CRLREV/606/2016

Case brief

AI extract

What is this about?

This criminal revision petition challenged a Magistrate's order allowing an accused to submit his signature for handwriting comparison. The High Court upheld the order as lawful but directed the Trial Court to fix a strict one-month deadline for the expert report and ensure trial completion by October 2016.

What did the court decide?

Criminal Revision Petition allowed; Trial Court directed to fix one-month deadline for handwriting expert report and complete trial by October 2016.

Rajkishore Parida Vs Akshaya Kumar Nayak — Cheque Dishonour | Orissa HC (2016)

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IN THE HIGH COURT OF ORISSA, CUTTACK

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CRLREV NO. 606 of 2016

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From the order dated 20.07.2016 of the S.D.J.M., Kendrapara in I.C.C. Case No.454 of 2013.

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Rajkishore Parida ……… Petitioner -VersusAkshaya Ku. Nayak ……… Opp. party For Petitioner: - Mr. Aurovinda Mohanty

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For Opp. party: - None

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-------------------P R E S E N T:

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THE HONOURABLE MR. JUSTICE S.K. SAHOO

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------------------------------------------------------------------Date of Argument and Order- 19.08.2016 -------------------------------------------------------------------

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S. K. Sahoo, J . Heard Mr. Aurovinda Mohanty, learned counsel for the petitioner.

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This is an application under section 401 read with section 397 of the Cr.P.C. challenging the order dated 20.07.2016 passed by the learned S.D.J.M., Kendrapara in I.C.C. Case No.454 of 2013 in which the petition filed by the opposite party-accused with a prayer to send his specimen signature to the handwriting expert for comparison with the signatures

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appearing on the disputed cheque and Vakalatnama and to submit a report was allowed.

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The petitioner filed a complaint petition for commission of offence under section 138 of the Negotiable Instruments Act, 1881 (hereafter ‘N.I. Act’) against the opposite party on the ground that the opposite party issued a cheque bearing no. 0165975 of Rs.4,80,000/- (rupees four lakh and eighty thousand) in favour of the petitioner which bounced on being presented in the bank for encashment.

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From the impugned order, it appears that petitioner was examined on 22.09.2014 but the opposite party did not cross examine him in spite of affording of several opportunities and accordingly, the learned Magistrate declined the cross examination and posted the case for recording of the accused statement. Subsequently, an application was filed by the opposite party for recall of the petitioner for cross examination which was allowed but again the opposite party did not avail such opportunity for several dates and then once again the learned Magistrate posted the case for recording of the accused statement. The opposite party again filed another application to recall the petitioner for cross examination which was again allowed. On 01.07.2016 a petition was filed by the opposite

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party under Anneuxre-1 making a prayer to send cheque no.0165975 with his specimen signature to the handwriting expert to compare it with the signatures which are appearing on the cheque as well as on the Vakalatnama and to submit a report.

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The petitioner filed his objection under Annexure-2 stating therein that the petition is not maintainable in the eye of law and in spite of several opportunity being afforded to the opposite party for cross examination, he has not preferred to cross examine the petitioner and that opposite party has not set up any defence plea and therefore, by entertaining such petition, assistance cannot be provided to him by the Court. It is further indicated in the objection that the cheque in question did not bounce due to difference in signature of the drawer but due to insufficient fund only and therefore, the petition was filed just to delay the disposal of the case.

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The learned S.D.J.M., Kendrapara vide impugned order dated 20.07.2016 relying upon the citations in cases of The State (Delhi Administration) -Vrs.- Pali Ram reported in AIR 1979 Supreme Court 14 and Ajit Savant Majagavi - Vrs.- State of Karnataka reported in AIR 1997 SC 3255 has been pleased to allow the petition filed by the opposite party

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and directed that the specimen signature of the opposite party along with the signatures appearing on the Vakalatnama as well as on the cheque and other documents be sent to the handwriting expert for comparison and directed the accused to pay Rs.500/- to the petitioner for delay in filing such petition after the stage of accused statement and further directed the opposite party to remain present in person to give his admitted signature before the Court.

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Learned counsel for the petitioner while challenging the impugned order vehemently contended that when in spite of affording several opportunities, the opposite party did not prefer to cross examine the complainant and thereby the evidence in chief has remained unchallenged and the signature appearing on the cheque has not been disputed by the defence by way of cross examination, by allowing the petition filed by the opposite party, serious prejudice has been caused to the petitioner and it will unnecessarily delay the disposal of complaint case proceeding which is of the year 2013.

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Section 45 of the Evidence Act deals with opinions of experts. The Court can seek for the assistance of a handwriting expert under section 45 of the Evidence Act or by anyone familiar with the handwriting of the person concerned as

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provided by section 47 of the Evidence Act. Section 73 of the Evidence Act enables the Court to direct any person to give his signature or handwriting for comparison. The Court is empowered to compare the admitted writings and signatures of the persons with the disputed one in order to ascertain whether the signatures and writings in question are really by the person by whom it purports to have been written or made. Even though there is no legal bar for a Judge using his own eyes to compare the disputed signature/writing with the admitted signature/writing but it is not always be justified for a Judge in assuming the role of an expert to base the decision solely on such a comparison. The Court should be extremely slow in venturing an opinion on the basis of a mere comparison and in case of slightest doubt; it should leave the matter to the wisdom of experts. It should be remembered that expert’s evidence is not conclusive and it is after all opinion evidence which can lend corroboration to the direct evidence in the case. The expert’s evidence particularly the opinion of a handwriting expert must always be received with great caution and it may be hazardous

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to base a conviction solely relying on the opinion of the handwriting expert. A Court is not bound to accept the evidence of an expert unless it is supported by sound reasons and data

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and unless the Court is satisfied about the competence and credibility of the handwriting expert. The reasons in support of the opinion must be convincing to make the opinion acceptable.

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In case of The State (Delhi Administration) -

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Vrs.- Pali Ra m reported in A.I.R. 1979 S.C. 14 , it is held as follows:-

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“ Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence solely on comparison made by himself. It is, therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert.”

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In case of Ajit Savant Majagavi -Vrs.- State of

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Karnataka reported in A.I.R. 1997 S.C. 3255 , it is held as

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follows:-

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“As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest doubt, leave the matter to the wisdom

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of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act.”

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Considering the submissions made by the learned counsel for the petitioner and taking into account the provisions under sections 45, 47 and 73 of the Evidence Act, I am of the view that even though the opposite party has not availed several opportunities afforded to him for cross-examination of the complainant but for that he cannot be precluded in making a prayer as was made in the case by filing a petition on dated 01.07.2016 before the learned Magistrate. I am further of the view that the learned Magistrate was quite justified in passing the impugned order and there is no illegality, infirmity or ambiguity in the impugned order.

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However, since it is a case of the year 2013 and subsection (2) of section 143 of the N.I. Act provides for day to day trial and sub-section (3) of section 143 of the N.I. Act provides that the Court shall make endeavor to conclude the trial within six months from the date of filing of the complaint, the learned Trial Court while sending the specimen signature of the accused along with other connected documents to the handwriting expert for giving his opinion after comparison should fix the maximum

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time limit of one month time for submitting such report. In case such a request is made to the handwriting expert, the report should be furnished by the expert accordingly within the stipulated period of time.

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A copy of this order be also sent with the request letter of the learned Magistrate to the handwriting expert to do the needful.

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It is made clear that in the meantime, the proceeding shall continue and since the opposite party has been given another opportunity of cross examination of the complainant by the learned Magistrate, a specific date may be fixed for such purpose and if the opposite party fails to avail such opportunity and the complainant does not want to adduce any further evidence, the prosecution case should be closed and then the opposite party should be given an opportunity to adduce his defence evidence, if any, after recording of the accused statement. After receipt of the opinion of the handwriting expert, if any of the parties prays to summon the handwriting expert for his examination, the Court shall consider such prayer and pass appropriate order in accordance with law and then the argument of the case should be heard and judgment should be

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pronounced. The entire exercise should be completed by end of

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October 2016.

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With such observations, the Criminal Revision

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petition is disposed of.

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A copy of the order be sent to the learned Trial Court

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