Back
MADRAS HIGH COURT
M. Venugopal, J.
M.S. Saravanan —Petitioner
versus
S.M. Jeyaraj —Respondent
Crl. R.C.(MD) No.694 of 2013 and M.P.(MD) No.1 and 2 of 2013
Decided on 4.11.2013
Counsel for the Parties:
For the Petitioner:Mr. A. Thiruvadikumar, Advocate.
For the Respondent: Notice served (No appearance).
IMPORTANT POINT
The object of Sections 138 and 139 of NI Act is that the cheque issued for payment of admitted liability, the drawer must honour his liability.
Headnote:(i) Negotiable Instruments Act, 1881—Section 138 and 139—Scope and Object of—The object of Sections 138 and 139 of NI Act is that if the cheque issued for payment of admitted liability, the drawer must honour his liability—Under NI Act, the only burden of proof is on the complainant, which he has to discharge in case of dishonor of cheque—He must establish that the cheque was given to him by the accused in discharge of legally enforceable debt/liability—The position of law is that once executive of the pronote is admitted, the presumption under Section 118 of NI Act will arise that it is supported by consideration, although such a presumption is a rebuttal once. (Para 12)
(ii) Criminal Procedure Code, 1973—Section 243—Scope and ambit of—A reading of ingredients of Section 243 of CrPC categorically indicates that soon after the evidence of prosecution is over, the accused shall be enter upon his defence—If the accused desires a experts evidence in his defence, he can make it available and may also, if need be examined, the concerned expert—Even in absence of a specific provision in Chapter XIX of CrPC he can make a request to the concerned Court with the document, whose genuineness he disputes may be sent for a expert, opinion —It is valuable right given to an accused is not entirely in the areas of investigation and would admit of no restriction, except where the Magistrate is satisfied for reasons to be recorded that the intended exercise clearly for the purpose of delay or for defeating the ends of justice as the case may be. (Paras 13 & 14)
Result: Revision petition allowed.
M. Venugopal, J.—The Petitioner/Accused has preferred the instant Criminal Revision Case as against the order dated 06.09.2013 in Crl.M.P.No.5149 of 2013 in C.C.No.721 of 2012 passed by the Learned Judicial Magistrate, Fast Track Court, (Magisterial Level), Tuticorin, Tuticorin District.
2. Earlier in Crl.M.P.No.5149 of 2013 in C.C. No. 721 of 2012 filed by the Petitioner/Accused before the trial court it is averred that he has not borrowed any loan from the Respondent/ Complainant and further stated that he has not executed any pronotes. Further, it is specifically mentioned that the Complainant (Respondent) forged the signature of the accused and filed the case and also marked documents Ex.A.5 to A8. As a matter of fact, the petitioner has sought for verifying the signatures in Ex.A5 to A8 documents by the Hand Writing and Finger Print Experts along with the specimen signatures. Therefore, the petitioner filed a petition seeking permission of the trial court to send the petition mentioned documents to the Hand Writing Expert and to compare his signatures found in the said pronotes etc.
3. The Respondent/Complainant filed a counter to Crl.M.P.No.5149 of 2013 stating that the signature in Ex.A.5 to A8 documents could not be compared with subsequent signatures obtained in court. Further, it is stated that the Petitioner/Accused has not denied the signature in the cheque issued and further that the petition has been filed by the Petitioner/Accused only to prolong and protract the proceedings.
4. The Learned Judicial Magistrate, Fast Track Court, (Magisterial Level), Tuticorin, Tuticorin District, while passing the impugned order dated 06.09.2013 in Crl.M.P.No.5149 of 2013 in C.C.No.721 of 2012 (filed by the Petitioner/Accused) has observed in paragraph No.9 to the effect that “Coming to the facts” of the present case this case was taken on file on 26.11.2012. The evidence for the prosecution completed on 14.06.2013. After that the accuse was questioned u/s 313 of Cr.P.C and the case was posted for defence. The case was periodically adjourned, at the request of the accused. Finally the case was posted on 18.06.2013, for of defence witnesses. More than a month time was given, 8 adjournments were granted the accused has not filed any witness list nor examined any other witness other than the cross examination of the P.W.1. Then the case is posted for Arguments, and 4 times adjournments were granted, this petitioner/accused moved with this application. Hence, it is clearly shows from the attitude of the accused to protract the proceedings, he moved this application. And further even at the time of the questioning by the court u/s 313 of Cr.P.C., the accused has not denied the signature in the pronote. And also the accused stated in his application that send the signature of the accused which was obtained in the year 2009 with the admitted signatures to be obtained in the court in the year 2013. It is very specific that comparison of the signatures shall be made with the signatures obtained in the same time period. And also there is no purpose in the petition, that the petitioner is ready to give the specimen signature of him in the year 4 years back; and resultantly dismissed the petition.
5. Assailing the correctness of the order of dismissal dated 06.09.2013 in Crl. M.P. No. 5149 of 2013 in C.C.No.721 of 2012, the Learned Counsel for the Petitioner/Accused submits that the impugned order of the trial court is ex- facie illegal, arbitrary and against the well settled legal principles.
6. According to the Learned Counsel for the Petitioner the trial court has failed to appreciate the ingredients of Section 243(2) of Criminal Procedure Code. It is the contention of the Learned Counsel for the Petitioner that the main case was taken on file as C.C.No.721 of 2012 by the Learned Magistrate on 26.11.2012 and on behalf of the prosecution, the evidence was closed on 14.6.2013 and subsequently on 19.7.2013 Section 313 Cr.P.C proceedings wer
