Delhi High Court

Manoj Kumar vs Vipin Gautam on 23 August, 2016

$~
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
      +       CRL.M.C. 2892/2015 & Crl.M.A. No.10301/2015
                                   Date of Decision : 23rd August, 2016
     MANOJ KUMAR                                  ..... PETITIONER
                          Through:    Mr.Abhimanyu K.Singla, Adv.

                          versus

     VIPIN GAUTAM                                ..... RESPONDENT

                          Through:    Mr.Manish Kumar, Adv.

     CORAM:
     HON'BLE MR. JUSTICE P.S.TEJI

     P.S. TEJI, J

1. The present petition has been preferred by the petitioner

under Article 227 of the Constitution of India read with Section

482 of Code of Criminal Procedure (Cr.P.C.) for setting aside the

impugned order dated 12th February, 2015 passed by the learned

Additional Chief Metropolitan Magistrate (North), Rohini in C.C.

No.126/1/14 and allowing the specimen handwriting (comprising

figure work also) of the respondent to be taken in the Court for the

purpose of its comparison with the disputed handwriting appearing

on the cheque in question.

2. The facts giving rise to the present petition are within the

narrow compass and to the extent necessary, have been reproduced

hereinafter. A complaint under Section 138 of the Negotiable

Instruments Act, read with Section 420 of the Indian Penal Code

(IPC) was filed by the respondent against the petitioner in respect

of the dishonourment of a cheque issued for a sum of Rs.3,00,000/.

The said cheque was issued by the petitioner in discharge of his

liability against a friendly loan which was given by the respondent

to the petitioner in cash. Learned counsel for the petitioner has

stated that the said criminal complaint was false and was lodged

with a view to extort money from the petitioner. It is alleged that

the petitioner was not in friendly terms with the respondent and no

such friendly loan was given by the respondent to the petitioner.

3. Learned counsel for the petitioner has further submitted that

the petitioner had issued a blank signed cheque to the respondent

qua security of a committee (chit fund) which was being run by the

respondent and in which the petitioner was one of the member. It

is stated that at the time of becoming a member of the said

committee, the respondent demanded a blank signed cheque as a

security which was a condition applicable on all members. It was

further submitted that the petitioner took a chit fund for a sum of

Rs.50,000/- which was to be paid in instalments spread over a

period of twenty months. After repayment of all instalments, the

petitioner demanded his cheque in question which was not returned

by the respondent on the plea that the same was misplaced and

would be returned as and when found.

4. Learned counsel for the petitioner has submitted that one of

the members of the chit fund did not make payment to the

respondent and under the garb of the said excuse, the respondent

asked the petitioner and other members to 9contribute the said

defaulted amount of the defaulter member which was plainly

refused by the petitioner and irked over it, the respondent

fabricated the blank signed cheque and filed the complaint in

question.

5. In support of his case, learned counsel for the petitioner

relies on the version of cross-examination of the respondent in

which the respondent denied that he was running a committee by

saying "I do not run committees". The respondent in his cross-

examination further stated that "I cannot tell the exact date on

which I advanced the loan to the accused but it might be in the year

2007. I do not remember exactly whether the loan was advanced

in summer season or winter season" and "today I cannot show any

document in writing regarding giving the loan of Rs.3,00,000/- to

the accused by me." It was further stated by the respondent that

he did not know the exact date when the accused gave him the

cheque but it was given sometime on 26.09.2009 or 26.06.2009.

6. Learned counsel for the petitioner has next contended that

since the respondent had denied all the handwritings on the record

to be in his hand and that there was no admitted sample of his

handwriting available on the record, the petitioner moved an

application under Section 311-A before the Court below on 8th

May, 2012, seeking issuance of direction to the respondent for

giving his specimen handwriting in order to correlate his available

handwritings which was available on record. It is alleged that the

said application was wrongly dismissed by the Trial Court without

appreciating the scope, purpose and legislative intent of Section

311-A, on the ground that recourse to Section 311-A of the Cr.P.C.

cannot be taken simply to procure the evidence for the parties and

that the accused in his defence can examine the handwriting expert

or himself as a defence witness. It is alleged that in view of the

dismissal of the said application, a comparison of handwriting

cannot be done by any handwriting expert as the sample/standard

handwriting would not be available.

7. Learned counsel for the respondent, on the other hand, has

denied the averments made by learned counsel for the petitioner. It

is submitted by him that the first application under Section 311-A

Cr.P.C. moved by the petitioner, was allowed and the respondent

was cross-examined. However, another application under Section

311-A Cr.P.C. moved by the petitioner for issuance of direction to

the respondent for giving his specimen handwriting in order to

correlate his available handwritings which was available on record,

was without any just cause and reason. It is further alleged that

the petitioner had concealed the material facts from this Court as

well as from the Court below.

8. I have heard learned counsel for the parties at length & gone

through the available records. The cheque was admittedly

tendered by the petitioner to the respondent. It transpires from the

record and as submitted by learned counsel for the petitioner that

during cross-examination, the respondent had denied having filled

up the body of cheque in his own handwriting and as the

respondent had denied the same, in order to compare with

handwriting on the alleged cheque, a specimen handwriting was

required for the purpose of sending the same to the Forensic

Science Laboratory. However, the remedy provided by Section

311-A Cr. P.C. cannot be availed for the purpose of procuring the

evidence. The Court can exercise its power for handwriting

sample only when it appears pertinent to do so either for the

purpose of investigation or for the purpose of trial. The petitioner

has no bar to examine the handwriting expert or himself as a

defence witness.

9. Section 311-A of the Code of Criminal Procedure, reads as

under:-

"Section 311-A Power of Magistrate to order person to give specimen signatures or handwriting.- If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting.

Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding."

10. As per Section 311-A of the Cr.P.C., a magistrate is having

discretion to ask the accused or any other person to give specimen

signatures of handwriting. But the proviso to Section 311-A of

Cr.P.C. clearly provides that no order under the Section can be

made unless the person has at some time been arrested in

connection with investigation or proceedings of the case. In the

present case, it is an admitted fact that the respondent-herein is

neither the accused nor was ever arrested. He is the complainant in

the present case, therefore, as per proviso to Section 311-A of the

Cr.P.C., he cannot be asked to give specimen signatures or

handwriting. This Court has gone through the ratio of judgment in

the case of Dr. Suyog Vs. The State of Maharashtra and

Prosecutrix MANU /MH/0514/2014 in which it was observed as

under:-

"14. Perusal of the above Section makes it clear, specially the Proviso, that it relates to the power of the Magistrate to direct any person including an accused person to give specimen signatures or handwriting, if it is considered expedient for the purpose of investigation or proceeding, provided, the person concerned had at some time been arrested in connection with the investigation or proceedings concerned. It is pertinent to note that Respondent No. 2- prosecutrix is not an accused nor a person who was arrested in connection with investigation or proceeding concerned. Section 311-A of the Code of Criminal Procedure does not apply to the facts of the present matter."

11. Even otherwise, this Court observed in number of cases that

once matter is referred to Forensic Science Laboratory for

obtaining experts opinion, it takes about four to five years in

getting the report. Apparently, the complaint in the present case

was filed in the year 2009 and more than seven years have already

been passed. If the handwriting and signatures of the complainant

are allowed to be sent to FSL for comparison, it would take another

four to five years in disposal of the complaint case and such a

practice cannot be appreciated. It appears that the petitioner is

adopting delaying tactics on one or the another pretext, which he

cannot be allowed to do so.

12. In the aforementioned facts and circumstances, this Court