Karnataka High Court

Balakrishna Bheemashankar ... vs Nayeem Hulageri on 12 January, 2022

Bench: M.Nagaprasannapresided Bymnpj

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

        DATED THIS THE 12TH DAY OF JANUARY 2022

                        BEFORE

        THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

           CRIMINAL PETITION NO.101367/2020
         C/W. CRIMINAL PETITION NO.101372/2020

IN CRL.P.NO.101367/2020
BETWEEN :

BALAKRISHNA BHEEMASHANKAR KULKARNI,
AGED ABOUT 62 YEARS, OCC. (RTD) SERVICE,
R/O. # 305, 2ND FLOOR, CMS APARTMENT,
MAHISHI ROAD, YAMMIKERI,
DHARWAD-580 007.
                                       ...PETITIONER
(BY SRI ARAVIND D. KULKARNI, ADVOCATE)

AND :

NAYEEM HULAGERI S/O A. A. HULAGERI,
AGE. 35 YEARS, OCC. BUSINESS,
R/O. NAYEEM MANJI, 2ND CROSS,
SHIVAGIRI, DHARWAD-580007.
                                        ..RESPONDENT
(BY SRI AVINASH BANAKAR, ADVOCATE)

     THIS CRIMINAL PETITION IS FILED U/SEC.482 OF
CR.P.C., PRAYING TO QUASH ORDER DATED 15.10.2020
PASSED ON I.A. NO.4 BY THE IV ADDITIONAL DISTRICT
AND SESSIONS JUDGE, DHARWAD IN CRIMINAL APPEAL
NO.100/2019 WHICH IS FILED CHALLENGING THE
                           2




CONVICTION ORDER FOR THE OFFENCES PUNISHABLE U/S
138 OF N.I. ACT AND ALL FURTHER PROCEEDING
CONCERNED TO THE SAME, CONSEQUENTLY DISMISS THE
APPLICATION FILED UNDER SECTION 45 OF INDIAN
EVIDENCE ACT BY THE RESPONDENT HEREIN.


IN CRL.P.NO.101372/2020
BETWEEN :

BALAKRISHNA BHEEMASHANKAR KULKARNI,
AGED ABOUT 62 YEARS, OCC. (RTD) SERVICE,
R/O. # 305, 2ND FLOOR, CMS APARTMENT,
MAHISHI ROAD, YAMMIKERI,
DHARWAD-580 007.
                                       ...PETITIONER
(BY SRI ARAVIND D. KULKARNI, ADVOCATE)

AND :

NAYEEM HULAGERI S/O A. A. HULAGERI,
AGE. 35 YEARS, OCC. BUSINESS,
R/O. NAYEEM MANJI, 2ND CROSS,
SHIVAGIRI, DHARWAD-580007.
                                      ..RESPONDENT
(BY SRI AVINASH BANAKAR, ADVOCATE)

     THIS CRIMINAL PETITION IS FILED U/SEC.482 OF
CR.P.C., PRAYING TO QUASH ORDER DATED 15.10.2020
PASSED ON I.A. NO.3 BY THE IV ADDITIONAL DISTRICT
AND SESSIONS JUDGE, DHARWAD IN CRIMINAL APPEAL
NO.100/2019 WHICH IS FILED CHALLENGING THE
CONVICTION ORDER FOR THE OFFENCES PUNISHABLE U/S
138 OF N.I. ACT AND ALL FURTHER PROCEEDING
CONCERNED TO THE SAME, CONSEQUENTLY DISMISS THE
APPLICATION FILED UNDER SECTION 391 OF CR.P.C. BY
THE RESPONDENT HEREIN.
                              3




     THESE PETITIONS ARE COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

These petitions arise out of one solitary proceeding in

Criminal Appeal No.100/2019, whereby the IV Additional

District and Sessions Judge, Dharwad (for short, 'the first

Appellate Court') has allowed the applications filed by the

accused under Section 391 of Cr.P.C. and Section 45 of the

Indian Evidence Act 1872. The complainant calls in

question the orders passed on the applications.

2. Heard Sri Aravind D.Kulkarni, learned counsel

appearing for petitioner and Sri Avinash Banakar, learned

counsel appearing for respondent.

3. The brief facts leading to filing of these petitions

as bourn out from the pleadings are as follows :

A cheque for Rs.1,05,000/- drawn on HDFC Bank,

Dharwad was issued by the accused in favour of the

complainant, when the complainant presented the said

cheque for its realization, a stop payment direction was

issued by the accused. Based upon which, a legal notice

was caused by the complainant on the accused on

03.12.2012. A reply was given by the accused to the said

legal notice on 18.12.2012. Since the reply was not for

payment of the amount, the complainant files a private

complaint invoking Section 200 of Cr.P.C. for the offence

punishable under Section 138 of the Negotiable

Instruments Act, 1881 (for short, 'the NI Act'). The trial

Court by its Judgment dated 20.07.2019 convicted the

accused for the offence punishable under Section 138 of

the NI Act and further directed payment of fine of

Rs.1,20,000/- and in default of payment of said fine

amount, he would undergo imprisonment for a period of six

months.

4. The accused being aggrieved by the Judgment and

order of conviction dated 20.07.2019, preferred an appeal

before the first appellate Court in Criminal Appeal

No.100/2019. During pendency of the said appeal, the

accused files two applications, one under Section 391 of

Cr.P.C. seeking production of account statements and the

other application under Section 45 of the Indian Evidence

Act, seeking reference of the disputed cheque to the

handwriting experts as the ground urged by the accused

was that there was material alteration in the date

mentioned on the cheque. The complainant files his

objections to both applications and seeks its dismissal. On

consideration of the averments and the contentions, the

first appellate Court by its order dated 15.10.2020 allows

the applications by nominating the local handwriting expert

to give an opinion on the alleged alteration of the date and

further directed conclusion of the arguments within 15 days

thereafter. It is these orders that has driven the

complainant before this Court.

5. This Court on entertaining the petition granted

interim order of stay of further proceedings before the first

appellate Court and the same is in subsistence even as on

date.

6. The learned counsel for the petitioner Sri Aravind

D. Kulkarni, would submit that the applications filed by the

accused is only a ruse to drag the proceedings, as he had

all opportunity for production of such material before the

trial Court having failed to do so, it was not open for him to

file these applications before the first appellate Court. He

would submit that the first appellate Court has grossly

erred in allowing the applications.

7. On the other hand, Sri Avinash Banakar learned

counsel appearing for the respondent would refute the

submission and contend that it is not for the first time the

ground of material alteration of the cheque is taken, the

right from the reply given by the accused, that is his stand

and therefore, the applications are filed before the first

appellate Court and he would submit that there is no bar in

law for the first appellate Court to take note of applications

under Section 391 of Cr.P.C. or under Section 45 of Indian

Evidence Act as the case would be.

8. I have given my anxious consideration on the

submissions of the respective learned counsel and perused

the material on record.

9. The only issue that falls for my consideration is

whether the first appellate Court could have entertained

the applications filed under Section 391 of Cr.P.C. and

Section 45 of the Indian Evidence Act. Section 391 of

Cr.P.C. reads as follows :

"391. Appellate Court may take further evidence or direct it to be taken.-

(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.

(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry."

10. In terms of Section 391 of Cr.P.C. the accused has sought for production of his own account statement to buttress his contention that he had withdrawn certain amount and paid to the complainant. Another application is filed under Section 45 of the Indian Evidence Act, 1872. Section 45 of the Indian Evidence Act, 1872 reads as follows :

"45. Opinions of experts.--When the Court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting] [or finger impressions] are relevant facts. Such persons are called experts."

11. The accused sought reference of the disputed

cheque to be placed before a handwriting expert as the

accused disputed the date on the cheque.

12. The learned counsel appearing for the accused

has placed the reply given by him at the outset when a

legal notice was caused by the complainant with regard to

his defence. The reply reads as follows :

"My client and your client wanted to purchase some house property at Dharwad. In this connection some advance amount was to be paid. Therefore your clients has contributed one lakh and my client was to contribute one lack. Your client has paid Rs.1,00,000/- in the month of May 2012 by way of cheque. But, the transaction was not materialized because of some problems regarding house property. Thereafter the transaction was repudiated. But, the amount f Rs.1,00,000/- was to refunded to your client immediately. Thereafter your client insisted my client to give security to the said amount. Thereafter my client has issued a black cheque of HDFC Bank, Dharwad on 10.7.2012 without mentioning the name and payee, and amount of Rs.1,05,000/- was mentioned in the cheque, because your client had demanded the interest of Rs.5,000/- per month.

On 3.9.2012 my client had withdrawn a sum of Rs.1,40,000/- from HDFC Bank, Dharwad and cash of Rs.1,05,000/- was paid to your client in the house of your client and my client had requested your client to return the cheque. Your client told my client that, the cheque would be given within couple of days. Thereafter my client asked your client to return the cheque, but your client demanded Rs.15,000/- as interest over the amount for three months. My client after knowing the mischief act of your client, informed the Bank to stop payment because the name of Payee was not mentioned. And other may not get benefit of such omission of not mentioning the name of payee. Hence my client informed the Bank to stop payment. There was no liability existing on my client as my client had paid full amount of Rs.1,05,000/- on 3.9.2012. My client has not issued any cheque for Rs.1,05,000/- on 10.11.2012 as alleged by your client. It is leant that, your client is doing money lending business without money lending license. If he is claiming interest it is not legally recoverable without valid license. Therefore, a sum of Rs.15,000/- is not legally recoverable.

Therefore, advises your client not to proceed with matter otherwise my client intend to prosecute your client for committing alteration by mentioning the name of payee and fabricating the cheque by

altering the date under the provision of Indian Penal Code.

Please take this reply notice.

Sri.H.R.Mane.

Sd/-

Advocate, Dharwad."

13. It is the case of the accused right from the

beginning that there is alteration in the date of the cheque

as he is not issued any cheque on 10.07.2012. Therefore,

it was necessary for him to put up the said defence before

the trial Court or before the first appellate Court. It is no

doubt true that the accused has not produced those

documents before the trial Court which has ended in his

conviction. It is the right of the accused to put up of such

defence and it is for the Court to grant such opportunity to

an accused already been convicted of a particular offence.

The view of mine in this regard draws support from the

Judgment rendered by the co-ordinate Bench of this Court

in the cases of Smt Nasreen Pasha v. Malik Ahmed,

reported in 2017(2) Kar.L.J. 586, wherein this Court held

as follows :

"36. A doubt arises as to why the accused has not taken any steps before the Trial Court by filing any application u/s.45 of the Indian Evidence Act. It all depends upon the advocate who represent the accused and his legal accuman as well as the advise given by the advocate to the accused. The advocates are well versed in the legal proceedings before the court whereas the parties are not. Therefore the accused petitioner might have thought that when the police of Bhicholim Goa have sought for return of the said cheque for investigation that itself is sufficient for the court to return the same for examination of the said cheque by experts, under that guise he might not have filed any application u/s.45 of the Indian Evidence Act before the Trial Court. Nevertheless, it will not absolve the responsibility of the court while comparing the signature of the accused with that of the other admitted signatures in following the other legal processes as detailed above, in order to strengthen the act of the court in comparing the signature u/s.73 of the Indian Evidence Act.

37. It is a very basic fundamental principle of law that in a criminal case accused is entitled for opportunity at every stage of the case because the conviction that may be rendered by the court may end up in sending the accused behind the bars. In such an eventuality, the court can curtail the constitutional liberty of a person by sentencing him to imprisonment. Therefore the criminal jurisprudence recognizes the opportunity to the accused a fair trial throughout whether it is before the Trial Court or before the appellate courts or before the Revisional court or even before the Supreme Court. In some of the decisions, the Supreme Court has allowed the application u/s.45 of the Indian Evidence Act and remitted the matter to the Trial Court for fresh disposal. Therefore, it goes without saying that at any stage, if the accused makes out a ground for giving opportunity to him, such an opportunity should not be refused, in order to administer real and substantial justice.

38. I have also come across that some Judges are not sending the disputed signatures to the experts, though accused has requested and made a ground, on the reason that, it would consume lot of time and delay the trial, for which accused is not

responsible. Mere such delay itself is not sufficient to give a go bye to the principles of natural justice.

39. Looking to the above said facts and circumstances of the case and also the evidence on record, the first appellate court having come to the knowledge of these materials, would have properly appreciated the materials on record and provided an opportunity to the accused by allowing the application u/s.45 of the Indian Evidence Act, providing fair trial to the accused by providing sufficient opportunity to the accused to prove his defence, whatever may be the minor lapses on the part of the accused. If the signature on the cheque is doubtful, then the courts should normally has acceded to the request of the accused for sending the cheque for experts' opinion.

40. On the basis of the above said facts and circumstances of the case particularly so far as this case is concerned, in my opinion, the accused has placed sufficient materials to doubt the signature on Ex.P1. When such a doubt is expressed throughout and also the accused has taken appropriate action at his risk, by filing a complaint and also taken that defence during the course of the evidence of the prosecution witnesses and also adduced evidence expressing that doubt, the appellate court definitely

considering all these aspects ought to have allowed the said application. Therefore, I am of the opinion that the first appellate court has committed a serious error in dismissing the application u/s.45 of the Indian Evidence Act, without considering all the above said important aspects and also not adhering to the principles of natural justice by providing fullest opportunity to the accused to defend himself in a criminal case. Hence, the judgment of the Trial Court as well as the first appellate court deserves to be set aside. It is also open to the trial Court that after providing full opportunity to both the parties, if the court is of the opinion, the accused has deliberately misused the discretion of the court to protract the proceedings. The trial Court can very well take note of the same while imposing sentence on the accused, commensurate with the conduct of the accused and the offence committed."

14. Yet again this Court in Criminal Petition

No.102726/2017 disposed off on 13.01.2021 while

considering a identical issue holds as follows :

"7. The application filed by the complainant in I.A.No.1 is to refer Ex.D.1 for the purpose of eliciting opinion of expert as to whether disputed signature on Ex.D.1 is that of the complainant or not. Clear

stand of the complainant is that he had not signed Ex.D.1 and it is a created document. Learned trial Court has rejected the application merely on the ground that in order to ascertain as to whether Ex.D.1 is a genuine document, there is the oral evidence of P.W.1 who is the complainant, on the one side, and the oral evidence of accused (D.W.1) and D.W.2 who is stated to be the attestor to Ex.D.1.

Learned trial Court has also held that, apart from the above evidence, it is open to himself (trial Court) to exercise the power under Section 73 of the Evidence Act and collect sample signatures of the complainant in the Court and compare the same with the disputed signature and form an opinion as to whether it is really the signature of the complainant or not. In my considered opinion, the said exercise of the learned trial Court will not be affected if an expert opinion is sought on the signature that is borne on Ex.D.1 by referring the said document to the examination by expert, along with his admitted and sample signatures. As a matter of fact, the entire case turns on the finding by the trial Court as to whether the signature appearing on Ex.D.1 is that of the complainant or not. Under such circumstances, it is essential that the best and the complete evidence on the aspect as to whether the signature on Ex.D.1 is really that of the complainant or not is obtained by

the trial Court. Such an exercise in terms of referring the document to the examination of an expert will not deprive the accused of the opportunity to cross examine such an expert, when the opinion of the expert is obtained and placed before the Court. This view of mine receives support from the following observation of the Hon'ble Supreme Court in the case of Ajay Kumar Parmar (supra), which is as follows:

"23. The opinion of a handwriting expert is fallible/liable to error like that of any other witness, and yet, it cannot be brushed aside as useless. There is no legal bar to prevent the Court from comparing signatures or handwriting, by using its own eyes to compare the disputed writing with the admitted writing and then from applying its own observation to prove the said handwritings to be the same or different, as the case may be but in doing so, the court cannot itself become an expert in this regard and must refrain from playing the role of an expert, for the simple reason that the opinion of the Court may also not be conclusive. Therefore, when the court takes such a task upon itself, and findings are recorded solely on the basis of comparison of signatures or handwritings, the court must keep in mind the risk involved, as the opinion formed by the Court may not be conclusive and is susceptible to error, especially when the exercise is conducted by one, not conversant with the subject. The court, therefore, as a matter of prudence and caution should hesitate or be slow to base its findings solely upon the comparison made by it. However, where there is an opinion whether of an expert, or of any

witness, the court may then apply its own observation by comparing the signatures, or handwritings for providing a decisive weight or influence to its decision."

8. Therefore, I am of the considered opinion that learned trial Court was not right in rejecting the application I.A.No.1 filed under Section 45 of the Evidence Act. Accordingly, the said order is liable to be set aside.

9. Hence, the following:

ORDER The impugned order passed on 28.11.2017 on I.A.No.1 in C.C.No.6 of 2016 on the file of the learned Civil Judge and JMFC, Mudalagi, is set aside.

I.A.No.1 in C.C.No.6 of 2016 is allowed.

Learned trial Court is directed to refer Ex.D.1 for the examination of the disputed signature for the opinion of the expert thereon, along with admitted/sample signatures forthwith.

Communicate this order to the learned trial Court forthwith."

Therefore, in the light of the facts obtaining from the case

at hand and Judgments rendered by the co-ordinate Bench

of this Court (supra), I do not find any illegality or error

committed by the first appellate Court in allowing the

applications filed by the accused under Section 391 of

Cr.P.C. or under Section 45 of the Indian Evidence Act, as

the first appellate Court has rendered cogent reasons to

allow the applications. Petitions lack merit and are

dismissed.

15. It is needless to observe that the accused shall not

drag the proceedings on the pretext of production of