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2009(5) Supreme 674
SUPREME COURT OF INDIA
S.B. Sinha and Cyriac Joseph, JJ.
G. Someshwar Rao — Appellant
versus
Samineni Nageshwar Rao & Anr. — Respondents
Criminal Appeal No. 1353 of 2009
[Arising out of S.L.P.(Crl.)No. 6278 of 2007]
Decided on : 29-07-2009
Facts of the Case :
Present Appeal has been filed against order passed by High Court whereby and whereunder a revision application, filed by appellant, arising out of a judgment and order passed by Ist Additional Judicial Magistrate of First Class, dismissing an application filed by appellant for sending disputed pronote and cheque for examination of a handwriting expert, was dismissed.
Findings of the Court :
Instantly pronote was issued in the year 2002. The cheque was issued in the year 2004. The complaint petition was filed in the year 2004.The complainant examined his witnesses in between the period September 2006 and February 2007. Appellant examined his own witnesses. They had been cross-examined. Magistrate noticed that even the legal notice served upon him was not accepted by the appellant. The court, in said situation, held that gap between execution of two signatures was such where some variance was possible. Rightly or wrongly, his application was dismissed by an order dated 07th April 2007. Immediately thereafter another application was filed on 20th June 2007 which was not maintainable as allowing the same would have amounted to recall of an order passed by Magistrate himself being impermissible in law.In the latter application only the document which was to be sent for comparison was changed. Evidently, appellant had filed two successive application. Second application was, thus, not maintainable. This itself showed that appellant intended to delay the disposal of the matter. He could have examined his own expert. Keeping in view the peculiar facts and circumstances of this case, held that the interest of justice would be subserved if an opportunity was granted to the appellant to examine an expert at his own costs. Appeals dismissed.
Result : Appeals dismissed.
JUDGMENT
S.B. Sinha, J.—
1. Leave granted.
2. Challenge in this appeal, which arises out of S.L.P.(Crl.)No.6278 of 2007 is to a judgment and order dated 22nd August 2007 passed by a learned Single Judge of the High Court of Andhra Pradesh whereby and whereunder a revision application, filed by the appellant herein, arising out of a judgment and order dated 07th April 2007 passed by the Ist Additional Judicial Magistrate of First Class, Khammam dismissing an application filed by the appellant for sending the disputed pronote and the cheque for examination of a handwriting expert, was dismissed.
3. According to the appellant, an agreement to sell was entered into in terms whereof one Bangi Venkanna and Y. Satyanarayana, brother-in-law of the 1st respondent agreed to purchase the appellant’s share of the suit land for a total consideration of Rs.12,00,000/- (Rupees twelve lacs) and out of the said amount, a sum of Rs.4,00,000/- (Rupees four lacs) was paid by way of advance. According to him, as the said agreement could not be given into effect to, the same stood cancelled vide another agreement dated 22nd August 2004 and the disputes stood amicably settled.
4. However, first respondent herein filed a complaint petition, being C.C.No.77 of 2005, against the appellant for commission of an offence under Section 138 of the Negotiable Instruments Act, 1881 on the premise that the appellant had executed one pronote on 21st October 2002 for a sum of Rs.5,00,000/- (Rupees five lacs). It was also alleged that he also issued a cheque bearing no.400707 on 25th October 2004 for another sum of Rs.6,00,000/- (Rupees six lacs) purportedly in favour of the 1st respondent drawn on State Bank of Hyderabad, Suryapet Branch. The said cheque, according to the said respondent, when presented before the bank for having been honoured, was returned with the remarks ‘Insufficient Funds’.
5. Appellant contended that the said pronote as also the cheque were forged and fabricated. He also denied and disputed execution of the said cheque. He, therefore, filed an application for examination of the said pronote as also the cheque, which were marked as Exs.P-1 and P-2 respectively, by a handwriting expert. The said application, being Crl.M.P.No.757 of 2007 in C.C. No.77 of 2005, however, was dismissed by an order dated 07th April 2007 by the learned 1st Addl. Judicial Magistrate, relying on a decision of the High Court of Andhra Pradesh being Renu Devi Kedia v. Seetha Devi1 reported in 2004(6) ALT 429 and another decision reported in 2005(1) ALD (Crl.) 161 (AP), stating :
“12. In view of the decision of our own Hon’ble Court referred to above, there is every possibility for a party to disguise his signatures and as the transaction under Ex.P1 does not relate to Exs.P-1 and P-2, the same cannot be taken as an admitted document for comparison of the signatures of the petitioner / accused. Therefore, I see no useful purpose will be served in sending Exs.P-1 and P-2 to the Expert for comparison. Hence, I do not find any valid reason to allow this petition and accordingly, the petition is dismissed.”
6. The High Court, as noticed hereinbefore, by reason of the impugned order dated 22nd August 2007, dismissed the revision application filed against the said order being Crl.M.P.No.757 of 2007, stating:
“On a perusal of the evidence of P.W.1, it is clear that P.W.1 has specifically stated that Ex.P1-pronote and Ex.P2-cheque were executed by the accused. That evidence has not been challenged in the cross-examination, except putting a suggestion that one Venkanna put his signature in the name of the accused. There is no specific denial that the accused did not sign on Exs.P1 and P2. Therefore, the petition under Section 45 of the Indian Evidence Act is purported to have been filed only to drag on the matter. The calendar case is of the year 2005 and in the absence of any specific denial with regard to the execution of Ex.P1-pronote and issuance of Ex.P2-cheque, the questio
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