Bombay High Court
Balasaheb Barku Kolhe vs Jagdish Tryambakrao Mandlik And ... on 28 November, 2014
Bench: A.M. Thipsay
Tilak 1/7 (19)WP-1292-14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1292 OF 2014
Balasaheb Barku Kolhe .. Petitioner
Versus
Jagdish Tryambakrao Mandlik
and anr .. Respondents
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Mr.Nilesh Zalte i/b Mr.Girish Agrawal, Advocate for the petitioner.
Mr.Tushar Sonawane, Advocate for respondent no.1.
Mrs.S.V.Gajare, APP for the Respondent State.
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CORAM : ABHAY M. THIPSAY, J.
DATED : 28th NOVEMBER 2014.
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ORAL ORDER :-
1 Rule.
2 By consent, Rule made returnable forthwith.
3 By consent, heard finally.
4 The petitioner is the accused in Sessions Case No.875
of 2010 pending before the Judicial Magistrate, First Class, Nashik.
The case is in respect of an offence punishable under section 138
of the Negotiable Instruments Act, and arises on a complaint filed
by the respondent no.1 herein.
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5 The petitioner is aggrieved by an order dated 17 th
April 2012 passed by the Magistrate, Nashik, rejecting the
petitioner's application (Exhibit-43) for sending certain documents
tendered by him in evidence, to the handwriting expert for
examination and his opinion. The petitioner had challenged the
said order by filing an application for revision in the Court of
Sessions, but the Revision Application came to be dismissed. It is
under these circumstances, that the petitioner has approached this
Court by filing the present petition, invoking the jurisdiction of
this Court under Article 227 of the Constitution of India, and its
inherent powers, praying that the orders passed by the Magistrate
and the Sessions Judge, be set aside and that the petitioner's
application (Exhibit-43) be allowed.
6 I have heard Mr.Nilesh Zalte learned counsel for the
petitioner. I have heard Mr.Tushar Sonawane, learned counsel for
the respondent no.1. I have gone through the petition and the
annexures thereto.
7 For the sake of convenience, the petitioner shall be
hereinafter referred to as 'the accused' and the respondent no.1 as
'the complainant'.
8 When the accused made the application at Exhibit-43,
the case before the Magistrate was for adducing the defence
evidence. The case of the accused was that he had already repaid
the amounts taken by him from the complainant, and therefore,
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the cheque in question could not be said to have been issued for
the discharge of any liability. The accused had tendered five
documents (termed as 'debit vouchers') in his evidence which were
marked, and exhibited as 'Exhibits-35, 36, 37, 38 and 39'.
According to the accused, the said vouchers were signed by the
complainant, indicating receipt of the amounts mentioned in these
vouchers by the complainant. The complainant had disputed the
genuineness of the said vouchers, and had denied that the
vouchers contained the signatures of the complainant. The
accused had also pointed out that during the cross-examination of
the defence witness, the complainant had suggested and alleged
that the signatures of the complainant on those documents, were
bogus. The accused had, therefore, prayed to the Magistrate that
the relevant signatures on those documents were required to be
compared with the admitted signatures of the complainant which
were available on the record of the case, and that therefore, it was
necessary to forward the said documents along with the admitted
signatures to an expert for his opinion on the identity or otherwise
of the signatures.
9 The prayer made by the accused was reasonable and
proper.
10 In the impugned order, the Magistrate held that the
accused had no genuine dispute about the said documents,
inasmuch as, had it been so, the accused would have filed the
application (Exhibit-43) at the earlier stage i.e. after his
appearance. The Magistrate observed that this conduct of the
accused showed his intention to delay the matter. The Magistrate
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noted the defence of the accused i.e. 'that he had paid the entire
amount of the cheque, and that the complainant had acknowledged
the same by making his signatures on the said documents', but held
that the signature of the complainant on the alleged documents
could be compared with his signatures available elsewhere on
record by the Magistrate himself, and that therefore, there was no
'just and proper reason to refer the alleged documents to handwriting
expert for an opinion.' While dismissing the revision application,
the learned Addl. Sessions Judge did not apply his mind to the real
question that was involved i.e. 'whether the accused could be
prevented from adducing defence evidence in the nature of
opinion of an expert as to the identity of the signatures purporting
to be of the complainant on the documents (Exhibits, 35, 36, 37,
38 and 39). He simply said that the lower Court had, 'taken into
consideration factual situation before it', and had 'arrived at the
correct conclusion.' The learned Addl. Sessions Judge did not
discuss how and why the order passed by the trial court was
correct.
11 In my opinion, the order passed by the Magistrate, as
also by the Addl. Sessions Judge is patently incorrect, unjust and
not in accordance with law.
12 Here was a case where the accused had come with a
specific plea that he had already paid the amounts due and
payable by him to the complainant, and as such, the cheque could
not have been said to have been issued in discharge of any legally
enforceable debt, or other liability. He had categorically stated
that the complainant had acknowledged the receipt of the said
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amounts. It is shocking that in spite of this categorical stand taken
by the accused, neither the Magistrate, nor the learned Addl.
Sessions Judge, felt the necessity of giving an opportunity to the
accused to adduce evidence in support of his contention.
13 It goes without saying that the accused is entitled to
have an opportunity to adduce evidence in defence. In fact, if the
accused is denied an opportunity to adduce evidence, the trial
would be vitiated. In similar circumstances, the Superior Courts -
and even the Apex Court - have always upheld the right of an
accused to adduce evidence in defence, and have added that not
only such right is found in the provisions of the Code of Criminal
Procedure, but is also implicit in Article 21 of the Constitution of
India. A reference may usefully be made in this regard to the
decisions of the Supreme Court of India in the case of Kalyani
Bhaskar Vs M.S. Sampoornam (2007) 2 SCC 258 and G.
Someshwar Rao Vs. Samineni Nageshwar Rao and Anr (2009)
14 Supreme Court cases 677.
14 The approach of the Magistrate and also that of the
Addl. Sessions Judge was totally erroneous and contrary to the
well settled principles of law. Denying the accused an opportunity
to establish the stand taken by him, would be totally unfair and
unjust. In fact, the wrong approach of the Magistrate is apparent
from the point of determination as framed by the Magistrate,
which reads as under:-
"Whether it is necessary to refer vouchers Exh.35
to 29 to the handwriting expert for an opinion as
prayed by accused ?
(emphasis supplied)
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The Magistrate overlooked that the necessity was to be perceived
by the accused, and not by the Magistrate. The Magistrate's view
to the effect that he could compare the disputed signatures with
that of the admitted signatures, and would form his own opinion
in that regard, and that 'therefore, it was not necessary to obtain
any opinion from any expert', was totally erroneous.
15 It was a simple case where the accused wanted to
adduce defence evidence. It was nobody's case that the evidence
intended to be adduced, was irrelevant or inadmissible. When
that was so, it was not open for the Magistrate to say that it was
not necessary for the accused to adduce that evidence.
16 The impugned orders are patently illegal and contrary
to the settled principles of criminal jurisprudence. The principle
that defence evidence (which is not irrelevant or inadmissible) can
be prevented from being adduced only if the Court considers that
the prayer to adduce such evidence, is made for the purpose of
vexation, or delay, or for defeating the ends of justice, has been
recognized by the Code of Criminal Procedure. (see sections
233(3) and 243(2). Even in such cases, the law enjoins upon the
Judge or the Magistrate, as the case may be, to record reasons for
his decision.
17 The impugned orders, therefore need to be interfered
with by exercising the constitutional jurisdiction of this Court.
17 Petition is allowed.
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18 The impugned orders are set aside.
19 The learned Magistrate shall allow the application at
Exhibit-43 and then proceed further with the case in accordance
with law. The learned Magistrate shall endeavour to dispose of
the case within a period of three months from the date of receipt
of this order by him, and in any case, within a period of two
months from the receipt of the opinion of the handwriting expert.
20 Petition is allowed in the aforesaid terms.
21 Rule is made absolute accordingly.
(ABHAY M.THIPSAY, J)
