IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
B. Siva Sankara Rao, J.
P. Kusuma Kumari - Petitioner
Versus
State of Andhra Pradesh and another - Respondents
Criminal Revision Case Nos. 1404, 1407 and 1408 of 2014
Decided on : 23-07-2014
Indian Evidence Act – Section 157 – Criminal Produce Code – Section 311 and 313 – Revision petitioner is the sole accused and the revision 2nd respondent-proprietary concern is the complainant of the above C.C, based on Ex.P-1 cheques said to have been issued by accused in discharge of a legally enforceable debt or other liability – In course of trial, P.W-1 stated examined and complainants evidence stated closed and accused was examined under Section 313 Cr.P.C and it is at the stage of his entering into defence, he filed these three applications, one is to send Ex.P-1 cheque, signature in dispute, to the hand writing expert to prove that it is a forged signature and not that of the accused that can be revealed by comparison of the signature with Vakalat filed by the accused and the other two petitions are under Section 311 Cr.P.C to receive five documents enclosed said to have been deposed by complainant as witness in one of the private complaint case in C.C. No.283 of 2012, where he made certain admissions regarding this case also and his deposition has a bearing and to confront him, his presence is required to serve as a defence witness for the accused person, revision petitioner herein – Held, coming to the other two applications, one to receive documents and the other to summon a witness by name P.Yedukondalu, when it is the defence of the accused that signature is forged one and he did not issue the cheque for discharge of any legally enforceable debt or other liability in rebutting the evidence of the complainant by entering defence and in saying said evidence of Yedukondalu is relevant to serve the defence to be summoned – There is no need to dismiss the application with any hypothesis from the contention of the complainant saying there is no assurance of the said Yedukondalu depose muchless admit truth or otherwise of the earlier deposition of him – In fact a previous deposition of a living person is inadmissible of evidence as per the settled expression Kalyan Peoples Cooperative Bank Ltd. v. Dulhanbibi, AIR 1966 SC 1072, but for admissible for purpose of either corroboration if admitted under Section 157 of Indian Evidence Act to serve if not to contradict under Section 145 of the Indian Evidence Act or under Section 155(3) of the Indian Evidence Act that too when the documents to be received including the earlier deposition of the witness within the said purpose. Thereby, the two impugned orders of the lower Court are also unsustainable – Criminal Revisions are allowed. (Paras 10 and 11)
B. Siva Sankara Rao, J.
These revision petitions are sought to be filed by the accused against orders passed by the III Additional Judicial First Class Magistrate, Rajahmundry, in Crl.M.P.No.1577 of 2014 (dt.26.06.2014), Crl.M.P.No.1167 of 2014 (dt.06.06.2014) and Crl.M.P.No.1074 of 2014 (dt.06.06.2014) in C.C. No.172 of 2012.
2. The revision petitioner is the sole accused and the revision 2nd respondent-proprietary concern is the complainant of the above C.C, based on Ex.P-1 cheques said to have been issued by accused in discharge of a legally enforceable debt or other liability. In the course of trial, P.W-1 stated examined and complainants evidence stated closed and accused was examined under Section 313 Cr.P.C and it is at the stage of his entering into defence, he filed these three applications, one is to send Ex.P-1 cheque, signature in dispute, to the hand writing expert to prove that it is a forged signature and not that of the accused that can be revealed by comparison of the signature with Vakalat filed by the accused and the other two petitions are under Section 311 Cr.P.C to receive five documents enclosed said to have been deposed by complainant as witness in one of the private complaint case in C.C. No.283 of 2012, where he made certain admissions regarding this case also and his deposition has a bearing and to confront him, his presence is required to serve as a defence witness for the accused person, revision petitioner herein.
3. All the three petitions after hearing from the counter opposed by the complainant, ended in dismissal by the lower Court by respective independent orders and so far as the application under Section 45 of Indian Evidence Act concerned, with the observation referring to some of the expressions including Vadrevu Annapurnamma v. Vadrevu Bhima Sankara Rao, AIR 1960 AP 359, Renu Devi Kedia v. Seetha Devi, 2004 (6) ALT 429 and Neelakantappa v. M.Munirathnam, 2005 (1) ALD (Crl.) 161 (AP), that there is no assurance to take the signatures on the vakalat as admitted signature for the possibility of the party to disguise his signature of vakalat or memo of appearance strictly cannot be taken as admitted signatures and thereby signature of the cheque Ex.P-1 disputed signature to compare with vakalat serves no purpose in its dismissal and so far as the other two applications concerned, held that there are no grounds to summon the said P.Yedukondalu, the so called person sought to be examined as witness of the defence evidence in cheque bouncing case are not parties to the proceedings muchless to receive the 5 documents supra including the deposition in C.C. No.283 of 2012. It is impugning the same, the present three revisions are filed respectively against the three orders.
4. It is the contention of the revision petitioner in all the three revision petitions that the impugned orders of the learned Magistrate are contrary to law and unsustainable and without giving an opportunity to the accused to enter the defence and thereby sought to be set aside.
5. The complainant-2nd respondent to the revision petition was ordered, while admitting, permitted to take personal service and registered post receipts filed as one of the additional material papers herein in showing the complainants absence and it is also across the bar by the learned counsel for the petitioner that the accused person filed petition under Section 309 Cr.P.C before the trial Court in seeking adjournment by stating that these three revision petitions against orders of the learned Magistrate impugned supra are pending and posted to today including for appearance of the complainant and they got sufficient notice.
6. Taking consideration of these facts and the statement of the advocate from what is referred supra, it is taken to decide on merits in the absence of the complainant. Perused the material on record. As all the three applications arising out of the same cause, these three applications taken together for common disposal for th
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