Sumathi vs V.S.Vijaykumar
2023 Latest Caselaw 1352 Mad

                                                                                     CRL.RC.No.1321 of 2017


                                     IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 03.02.2023

                                                           CORAM:

                                        THE HON'BLE Ms.JUSTICE R.N.MANJULA

                                                   Crl.RC.No.1321 of 2017
                                                             and
                                                   Crl.MP.No.12838 of 2017

                     Sumathi                                   .. Petitioner/Respondent/Accused

                                                               Versus

                     V.S.Vijaykumar                         ... Respondent/Appellant/Complainant

                                  Criminal Revision has been filed under Section 397 r/w 401 of the
                     Code of Criminal Procedure, to set aside the order passed by the Additional
                     Sessions Judge Magalir Neethi Mandram (Fast Track Court) Erode in
                     C.A.No.144/2017 order dated 13.09.2017 reversing the judgment and order
                     Acquittal passed in STC.No.566/2012 dated 03.05.2017.
                                       For Revision Petitioner :     Mr. S.Veeraraghavan
                                       For Respondent          :     Mr.M.Karthik for
                                                                     T.C.Vasudevan

                                                         ORDER

This Criminal Original Petition has been preferred challenging the

judgment of the Additional Sessions Judge, Magalir Neethi Mandram, (Fast

Track Court) Erode dated 13.09.2017 in C.A.No.144 of 2017.

https://www.mhc.tn.gov.in/judis CRL.RC.No.1321 of 2017

2.The petitioner is the accused against whom the respondent has given

a private complaint under Section 138 of NI Act-1881, for dishonor of

cheque. The case was taken on file by the Fast Track Court at Judicial

Magistrate level, Erode in STC No.566 of 2012 dated 03.05.2017. After a

full fledged trial, the learned Trial Judge had found the accused not guilty for

the offence under Section 138 of the Negotiable Instruments Act,1881 and

acquitted him. Aggrieved over the same, the complainant has preferred a

Criminal Appeal in Crl.A.No.144 of 2017 before the learned Additional

Sessions Judge, Magalir Neethimandram, Erode and the same was allowed

and the accused was a found guilty for the offence under Section 138 of

Negotiable Instruments Act, 1881 and he was sentenced to undergo one year

simple imprisonment and imposed with a fine of Rs.2,00,000/- along with

the compensation of Rs.50,000/-. Aggrieved over the same, the accused had

preferred this revision petition.

3.Heard the submissions made by the learned counsel on either side

and perused the materials available on record.

4. The learned Counsel for the revision petitioner submitted that the

very defense of the petitioner is that he had neither signed nor issued the

https://www.mhc.tn.gov.in/judis CRL.RC.No.1321 of 2017

impugned cheque as alleged by the respondent; the admitted signatures of

the petitioner along with signature in the impugned cheque were also sent to

the forensic department and the forensic expert has given a report that the

signature in the impugned cheque does not tally with the admitted signature

of the petitioner; even though, the learned trial Judge has rightly appreciated

the merit of the rebuttal evidence on the side of the petitioner; however, the

learned Appellate Judge simply overlooked the same and convicted the

petitioner on his own presumption; hence the judgment of the Appellate

Court should be set aside and the judgment of the trial Court should be

restored.

5.The learned counsel for the respondent submitted that the report of

the handwriting expert is not acceptable for the reason that the expert did

not examine the signatures of the petitioner obtained by the trial Judge in the

open Court which is marked as S.1 to S.15; the petitioner has the habit of

putting her signatures differently at different point of time just to escape

from her liability; the learned Trial Judge had omitted to appreciate the

evidence in appropriate angle and that was rectified by the Appellate Judge

and hence the revision should be dismissed.

https://www.mhc.tn.gov.in/judis CRL.RC.No.1321 of 2017

6.The respondent had preferred a private complaint by stating that the

petitioner had availed a loan of Rs.2 lakhs from him and executed a cheque

for Rs.2 lakhs and issued to him on 30.07.2012. When he presented the

cheque for collection, it was returned for the reason 'opening balance is

insufficient'. After complying the legal mandates, the respondent has filed

the complaint. The petitioner denied her signature in Ex.P1 impugned

cheque and has taken up a defense that the signature in the impugned

cheque was a concocted one and hence the cheque itself is a forged one. The

petitioner had taken steps to get the report of the forensic expert by

comparing her admitted signature with that of the signature on the impugned

cheque. The expert who has given his report in Ex.D1 and in which she has

stated that the signature in the impugned cheque does not match with the

signature found in the bank account opening form signed by the petitioner.

7.The learned Trial Judge has also obtained some 15 signatures in the

open court and serialized it as S.1 to S.15. However, the handwriting expert

had not chosen to take those signatures for consideration. Rather, she had

proceeded to compare the signature on the impugned cheque with that of the

signature of the petitioner in her Bank account opening form. The reason

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given by the forensic expert in Ex.D1 would show that the result was based

upon a detailed examination and the reasoning sheet attached with the report

would show the same. The handwriting expert who was examined as DW.1

has stated in his evidence that he did not take into consideration of Sl.Nos.1

to 15 because those fixtures were not simply signed as a signatures but it

was written like signatures.

8.The learner Counsel for the respondent submitted that the signatures

which have been taken up for comparison belong to different period of time.

He has a stated that the impugned cheque was issued on 15.06.2012 but the

document taken up for comparison pertains to the year 2008. He further

submitted that the report of the handwriting expert is not conclusive and the

accused has to get into the box and state that the signature on the impugned

cheque was not signed by her. In respect of the above contention, he relied

on the judgment of the Hon'ble Supreme Court held in M.Abbas Haji Vs.

T.N.Channakeshava [ reported in (2019) 9 Supreme Court Cases 606]. It

is held as under:

“5.The complainant filed an appeal to the High Court, which after considering the entire evidence, has delivered a well reasoned judgment upsetting the judgment of the Trial Court. The reasons which weighed with the High Court were that;

(1) the original appellant did not step into the witness box to

https://www.mhc.tn.gov.in/judis CRL.RC.No.1321 of 2017

state that he had not signed the cheque;

(2) that the opinion of the handwriting expert was only an opinion and not conclusive;

(3) that the original appellant had failed to prove that he had sent a reply to the notice sent to him by the complainant because so-called reply was not marked in evidence and no postal receipt of the same was placed on record.

6.It is urged before us that the High Court over- stepped the limits which Appellate Court is bound by criminal cases setting aside an order of acquittal. Proceedings under Section 138 of the Act are quasi-criminal proceedings. The principles, which apply to acquittal in other criminal cases, cannot apply to these cases. As far as the present case is concerned, in addition to three reasons, given by the High Court, we are of the view that the original appellant has not even explained how the leaves of the cheque entered into the hands of the complainant. It is urged that in cross- examination of the complainant some suggestions were made that since the complainant was visiting the office of the original appellant, he had access to the same. The complainant had only admitted that he visited the office of the original appellant but he denied all the other suggestions.

Thereafter, it was for the original appellant to prove his part of the case. The High Court, in our opinion, was right in holding the original appellant guilty under Section 138 of the Act.”

9.The learned counsel for the respondent further submitted that the

petitioner had chosen to send a reply notice and in that also the petitioner

had denied her signature on the cheque. There is no doubt about the legal

position that the opinion of the handwriting expert is not conclusive.

10.No doubt the signatures taken for comparison pertains to different

point of time, but even to the bare eye examination, the signature found in

Ex.P1 cheque and the signature found in the acknowledgment for the legal

notice sent by the respondent would show that the signature found in the

https://www.mhc.tn.gov.in/judis CRL.RC.No.1321 of 2017

cheque has got a fundamental difference, irrespective of the fact that a

person's signature would change in the course of time. The petitioner has

sent the reply notice in which she had specifically stated that the cheque was

not issued by her. However the learned Counsel for the respondent

submitted that during the cross examination of DW.1 who is the petitioner

herein, she has stated that she had handed over her the cheque book to the

complainant and the evidence of DW.1 should be read as above. She has

stated clearly that she has not signed the cheque but the cheque book itself

was with him.

11.The case involved in the citation referred by the learned counsel for

the respondent pertains a case where the complainant did not come to the

witness box. But in the case on hand, the complainant herself examined as

DW.2. The learned trial Judge did not consider the evidence of the

handwriting expert alone, but also the evidence of DW.2. According to

DW.2, ten women had obtained Rs.10,000/- each as loan from the

respondent and for which the respondent wanted the cheque books to be

handed over to him. If a person puts her signature in the cheque the initial

presumption would go in favour of the holder of the cheque. But the very

https://www.mhc.tn.gov.in/judis CRL.RC.No.1321 of 2017

categorical contention of the petitioner right from the beginning is that she

did not sign the cheque and she had also offered explanation about how her

cheque book fell into the hands of the respondent.

12. In that case, the respondent cannot have the benefit of initial

presumption and it is for him to prove how the signatures belong to that of

the complainant and the cheque has issued for a legally enforceable debt or

liability. But the respondent has not discharged his burden as the learned

trial Judge has rightly appreciated the entire evidence available on record

and recorded that the accused is not found guilty for the offence 138 of NI

Act. But the learned Appellate Judge without considering the impact of the

evidence of DW.1 and DW.2 and also without giving due credence to the

obvious difference found between the signatures in the cheque and the

admitted signatures of the petitioner available in Court, has proceeded to

record that the accused is guilty. In my opinion and in the background of the

reasons already stated, the judgment of the Appellate Court is liable to be set

aside and the judgment of the trial Court is liable to be restored and to that

affect the revision is deserved to be allowed.

In the result, this Criminal Revision Petition is allowed. The order

https://www.mhc.tn.gov.in/judis CRL.RC.No.1321 of 2017

passed by the learned Additional Sessions Judge, Magalir Neethi Mandram

(Fast Track Court) Erode in C.A.No.144/2017 order dated 13.09.2017 is

confirmed and the judgment and order Acquittal passed in

STC.No.566/2012 dated 03.05.2017 is set-aside. Consequently, connected

miscellaneous petition is closed.

03.02.2023 Index: Yes/No Speaking/ Non Speaking Internet: Yes/No Neutral: Yes/No jrs

https://www.mhc.tn.gov.in/judis CRL.RC.No.1321 of 2017

R.N.MANJULA, J.,

jrs

To:

1. The I Additional District and Sessions Court, Salem.

2. The Judicial Magistrate No.III , Salem.

Crl.RC.No.1321 of 2017 and Crl.MP.No.12838 of 2017

03.02.2023

https://www.mhc.tn.gov.in/judis