Swapan Kumar Dutta v. The State

IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT:HON'BLE JUSTICE ANANDA KUMAR MUKHERJEE CRR No. 15 of 2021 SWAPAN KUMAR DUTTA ... PETITIONER

Versus

THE STATE ...STATE/OPPOSITE PARTY For the petitioner : Mr. K.M.B. Jayapal, Advocate For the State/O.P : Mr. Sumit Karmakar, Advocate Heard on : 25.04.2022 Judgment on : 29.04.2022 ANANDA KUMAR MUKHERJEE, J.

1.

The petitioner has filed this application under section 401 of the Code of Criminal Procedure read with Article 227 of the Constitution of India assailing the judgment and order dated 30.09.2021 passed by learned Sessions Judge, Andaman and Nicobar Islands, Port Blair in Criminal Appeal No. 7 of 2019, whereby the appeal was allowed on contest and the petitioner, who was acquitted by learned Judicial Magistrate, Port Blair in G.R.Case No.3844 of 2005 was found guilty of the offences punishable under sections 468/471 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for three

years and pay a fine of Rs.10,000/- in default to suffer simple imprisonment for six months for the offence under section 468 of the Indian Penal Code and also sentenced the petitioner to suffer rigorous imprisonment for two years and to pay a fine of Rs.5000/- in default to suffer simple imprisonment for three months for the offence punishable under section 471 of the Indian Penal Code.

2.

The fact of the case, in brief, is that a complaint was lodged by Mamata Ghosh under section 156(3) of Cr.P.C before learned Chief Judicial Magistrate, Port Blair which was registered as Aberdeen Police Station Case No.1034/2005 dated 12.08.2005, to the effect that the defacto complainant Mamata Ghosh instituted a civil suit against the petitioner and one Brojendra Kumar Das for specific performance of a contract. In that suit, a written objection was filed by the petitioner enclosing a document purportedly executed between Mamata Ghosh and Brojenda Kumar Das. According to the defacto complainant it is a forged document, manufactured with an object to cheat her and grab her entire property. Police investigated into the complaint and submitted Charge Sheet against the petitioner under sections 468/471/420 of the Indian Penal Code. A charge was framed against the accused petitioner before the Court of learned Judicial Magistrate, Port Blair.

3.

In course of trial, prosecution examined seven witnesses and the report of the Hand-Writing Expert of the questioned document was admitted in evidence without examining the Government Examiner of questioned document. The questioned document was marked as Exhibit-19, which is a purported money receipt dated 18.08.2002 and apart from other documents, the report of Hand-Writing Expert was marked as Exhibit-20.

4.

The petitioner, in his application, contended that Kiran Chandra Pal and Krishna Poddar, the two persons who figured as witnesses in that money receipt (Exhibit-19), were not examined during trial. Mamata Ghosh (PW-3), in her evidence, deposed that she came to know about the purported document during trial of the suit before the Civil Judge Senior Division and she denied having put her signature on that receipt. It has been urged that the defacto complainant never stated in her evidence that the petitioner with an intention to cause damages or injury or to support any claim or title to any of her property, has manufactured the document.

5.

Further case of the petitioner is that save and except Exhibit-19 which is the statement-cum-money receipt dated 18.08.2002, there is no evidence on record that the present petitioner committed forgery to cause wrongful loss to the defacto complainant. It is argued on behalf of the petitioner

that the Trial Court, after considering the evidence on record, did not attach any evidentiary value to Exhibit-20 and had acquitted the petitioner. It is contended that there is no evidence on record that the petitioner has manufactured the document or had any ulterior motive. Furthermore at the time of admitting the Report of the Hand-Writing Expert as Exhibit - 20, objection was raised on behalf of the petitioner but the same was admitted in evidence without examining its author. It has been urged that the prosecution failed to cause appearance of Shri M.L.Sharma and Shri A.K.Singh, who had prepared Exhibit-20 and the petitioner had no occasion to test the veracity of the document by their cross-examination. 6.

Further case of the petitioner is that at the time of admission of Exhibit-19, two witnesses i.e. Kiran Chandra Pal and Shri Krishna Poddar, were not examined by prosecution but the same was admitted in evidence.

7.

Initially, the petitioner was acquitted from the case on the basis of the judgement passed by a learned Magistrate in G.R.Case No.3844/2005 on the ground that prosecution has failed to prove beyond doubt that the accused has manufactured the forged money receipt (Exhibit-19) or he forged the signature of the complainant on that document. On appeal by the State, the judgement of acquittal was set aside and learned Sessions Judge, it is contended has erroneously laid

emphasis upon Exhibit-19 and 20 without examination of Hand-Writing Expert.

8.

It is further argued on behalf of the petitioner that in a case where conviction is based upon the veracity of a questioned document before relying upon such document and considering the Report of the examiner of questioned document as sacrosanct, an opportunity should have been given to the accused/petitioner to cross-examine the Hand-Writing Expert. In support of such contention, learned advocate for the petitioner relied upon a decision in the case of Kesav Dutt vs. State of Haryana; (2010) 9 SCC 286. The principle laid down by the Hon'ble Apex Court in the said case is that when Trial Court relied on a report of handwriting expert, it ought to have examined the handwriting expert in order to give the accused an opportunity of cross-examining the expert.

It was further held that there is no material to indicate that the accused admitted the report of the expert and the Trial Court and the High Court erred in shifting onus onto appellant to disprove such expert opinion without it being formally proved. The sum and substance which is set out in the said judgement is that the expert opinion cannot be relied upon unless expert is examined. 9.

Learned advocate for the petitioner, relying heavily upon the observation of the Hon'ble Supreme Court and the evidence on record, argued that the impugned judgment of conviction

and sentence passed by the learned First Appellate Court is not tenable and in view of the infirmity indicated in the evidence, the impugned judgment is liable to be set aside. 10.

Learned advocate for the respondent/State argued that there is no infirmity in the judgment of conviction and sentence against the petitioner. The charge against the petitioner is proved on the basis of cogent and consistent evidence led by the prosecution. It is argued that the bone of contention in this case is the questioned documents Exhibit-19 and Exhibit 20 i.e. the report submitted by the Government Examiner of questioned document. The said document has been admitted in evidence. It is argued that, according to the Section 293 of Cr.P.C, any document purporting to be a report under the hand of a Government scientific expert may be used as evidence in any inquiry, trial or other proceeding under this Code and section 294 of the Cr.P.C provides that where any document filed before the Court by prosecution or the accused, the particulars of every such documents shall be included and no formal proof of such document is necessary to read the same in evidence.

11.

Learned advocate for the State/OP argued that once the document has been admitted in evidence, learned Sessions Judge, the First Appellate Court has appropriately considered the document and found that the accused was guilty of the

offence. It is urged that the present application is devoid of merit and the same is liable to be dismissed. 12.

Having considered the arguments advanced by learned advocates for both parties, the materials on record and the impugned judgement, I find that the report of handwriting relating to the questioned document has been marked as Exhibit-20 after objection. The accused person did not have the opportunity of cross-examining the witness to bring out the discrepancies, if any, regarding the questioned document (Exhibit-19). Under section 293(2) of the Cr.P.C, the Court if it thinks fit, summon and examine any such expert as to the subject matter of any report. In the present case, though objection was raised at the initial stage and the petitioner wanted to cross-examine the expert, the attendance of the witness was not enforced. In section 294 of Cr.P.

C, there is a rider in subsection (3), which lays down that where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed. Provided that the Court may, in its discretion, require such signature to be proved. 13.

It may therefore be gathered from this provision that if the genuineness of the document in question is disputed, it is essential that before considering the contents of such document

or the report of the expert as substantive evidence, an opportunity should be provided to the accused person to crossexamine the Expert. Needless to say that the questioned signatures are the matter in issue which have been produced by the petitioner as genuine. Therefore, the petitioner has the onus under section 106 of the Indian Evidence Act to explain how he came to possess Exhibit -19. In such a case there is no requirement to examine Kiren Chandra Pal and Krishan Poddar who are said to be witnesses in the document. 14.

In this context, it would be apposite to place reliance upon the decision of the Hon'ble Supreme Court reported in (2010) 9 SCC 286 which has categorically stated that the expert opinion cannot be relied upon unless the expert is examined.

15.

In view of legal position, I am constrained to hold that the impugned decision of the learned Sessions Judge is liable to be set aside with a direction upon the learned Trial Court to examine the examiner of the questioned document who has issued certificate which has been marked as Exhibit-20. 16.

The revisional application is allowed. The judgment and sentence passed by the learned Sessions Judge in Criminal Appeal No.7 of 2019 dated 30.09.2021 is set aside. It is also made clear that the judgment of acquittal passed on 20.09.2019

in G.R.Case No.3844 of 2015 by the Judicial Magistrate, Port Blair is also set aside.

17.

The case record along with lower court records be returned to the Court of learned Judicial Magistrate, Port Blair on remand with a direction that an opportunity may be given to the petitioner/accused to examine/cross-examine the government examiner of questioned document and pass a fresh judgement on the basis of evidence on record within three months from the date of communication of this order. 18.

The revisional application is disposed of.

19.

Urgent certified copy of this order, if applied for, be given to the parties upon compliance of required formalities. (ANANDA KUMAR MUKHERJEE, J.)