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Madras High CourtCRL RC(MD)/442/2016allowed

G.Kathiresan v. K.Krishnan

2017-07-14Honourable Mr Justice V. Bharathidasan3 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.07.2017

CORAM

THE HON'BLE MR.JUSTICE V.BHARATHIDASAN Crl.R.C(MD).No.442 of 2016 and Crl.M.P.(MD).No.5130 of 2016 G.Kathiresan ... Petitioner/Accused -VsK.Krishnan ... Respondent/Complainant Prayer : Criminal Revision Case filed under Section 401 r/w 482 of the Code of Criminal Procedure, against the impugned order dated 01.06.2016, passed in Cr.M.P.No.1468 of 2016 in S.T.C.No.462 of 2013 on the file of the learned Judicial Magistrate, No.II, Fast Track Court at Magisterial Level, Madurai.

For Petitioner : Mr.R.Narayanan For Respondent : Mr.M.Solaisamy

O R D E R

Dismissing the petitioner's application filed under Section 45 of Indian Evidence Act, the present revision has been filed. 2.The petitioner is accused in a private complaint filed under Section 138 of Negotiable Instruments Act. The respondent herein filed a complaint against the petitioner on the ground that the petitioner borrowed a sum of Rs.4,00,000/- from the respondent for business purpose and in order to discharge the above debt, he has issued a cheque drawn in his favour in ICICI Bank, Madurai, for a sum of Rs.4,00,000/-. Thereafter, the cheque was presented for collection and it was returned with an endorsement as 'insufficient funds'. Thereafter, after complying with all the legal formalities, the complaint has been filed. 3.The petitioner/accused has raised a defence that the petitioner did not borrow a sum of Rs.4,00,000/-.

Earlier, he borrowed a sum of Rs.50,000/- from the respondent/complainant and at the time of borrowal, he has given a blank cheque and pronotes for security. Thereafter, he has discharged the entire loan amount of Rs.50,000/- along with 10% interest. Now, using the above cheque, the present complaint has been filed. Earlier, in order to get back the above blank cheque and pronotes, the petitioner issued a legal notice. But, the respondent/complainant did not send a reply.

the petitioner. During the trial, the petitioner cross-examined the respondent/P.W.1, wherein, he has admitted that the petitioner/accused has given a filled up cheque. In the above circumstances, the respondent/complainant admitted that the petitioner has given only a filled up cheque, but according to him, only a blank cheque was given to him in an earlier occasion, and in order to verify the writing in the cheque is that of the petitioner, he has filed the present petition. 3.The trial court has dismissed the petition holding that the signature can be verified by the Court itself under Section 73 of the Indian Evidence Act and for that purpose, the cheque cannot be sent for expert opinion.

4.I have heard Mr.R.Narayanan, learned counsel appearing for the petitioner and Mr.M.Solaisamy, learned counsel appearing for the respondents and perused the records carefully. 5.The learned counsel appearing for the petitioner submitted that the specific case of the petitioner is that he has only given a blank cheque, while he was borrowing a sum of Rs.50,000/-. Now, by using the same cheque, the present complaint has been filed. But, during the cross examination of PW.1, he has stated that the petitioner has given a filled up cheque. In the above circumstances, in order to prove his defence that the writing of the cheque is not that of the petitioner, he wants to send the cheque for comparison. But, the Court below dismissed the same holding that the writings in the cheque can be compared under Section 73 of Indian Evidence Act by the Court itself, but the court cannot act as an expert to compare it.

6.Per contra, the learned counsel appearing for the respondent submitted that even though the petitioner stated in the cross examination that the accused has given the filled up cheque, there is no evidence to prove the writing of the cheque are that of the petitioner. It may be written by somebody else. Apart from that, the Court has ample power to compare the cheque under Section 73 of the Indian Evidence Act. In the said circumstances, the Court below dismissed the application and there is no infirmity in it.

7.I have considered the rival submissions carefully. 8.The specific defence of the petitioner is that during the earlier borrowal of Rs.50,000/-, a blank cheque was given to the respondent for security. Subsequently, he discharged the loan. By using that cheque , the present complaint has been filed. 9.From the perusal of cross examination of P.W.1, it is seen that the respondent/ complainant has stated that the accused has given a filled up cheque. From his evidence, it is seen that

only a filled up cheque was given by the petitioner to the respondent, but the case of the petitioner was that earlier blank cheque given by him was filled up the respondent. Hence, in order to the prove his defence, it is all the more necessary that the cheque should be sent to an expert and no prejudice will be caused to the petitioner by that. Even though the Court below has power under Section 73 of the Indian Evidence Act to compare, the Court cannot act as an expert to compare the writing, it is in the domain of the expert to compare the signature or writing. In the above circumstances, the order passed by the Court below is set aside and the matter is remanded to the trial Court.

The petitioner is directed to file documents containing his admitted writings, of the contemporary period, within a period of two weeks from the date of receipt of a copy of this order. 10.On production of such material, the Court should send disputed cheque with the admitted writings of the petitioner to an expert within a period two weeks thereafter, and after obtaining an opinion from the expert, proceed with the trial. It is also open to the Court to reject any of the documents produced by the petitioner, which is not admissible in evidence. 11.In the result, this Revision Case is allowed. Consequently, Connected Miscellaneous Petition is closed.

1. The Judicial Magistrate No.II, Fast Track Court at Magisterial Level, Madurai.

2. -Do- Thro Chief Judicial Magistrate, Madurai.

+1cc to Mr.R.Narayanan, Advocate Sr.No.65475 VS/LS VB/SV/SAR2/31.07.2017/3P/4C Crl.R.C(MD) No.442 of 2016 14.07.2017