Telangana High Court
Aitha Sivakumar vs Voruganti Sammireddy And The State Of ... on 9 August, 2024
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL REVISION CASE Nos.372 and 445 of 2012
COMMON ORDER:
1. Criminal Revision Case No.372 of 2012 is filed by the accused
questioning the concurrent findings of guilt by the Judicial
Magistrate of First Class at Siddipet vide judgment in C.C.No.185 of
2004 dated 15.04.2010 and same confirmed by the VI Additional
Sessions Judge vide judgment in Criminal Appeal No.51 of 2010
dated 14.02.2012 for the offence under Section 138 of the
Negotiable Instruments Act.
2. Criminal Revision Case No.445 of 2012 is filed by the
complainant seeking compensation of Rs.6,40,000/- which is the
double the cheque amount and also to award sentence adequately.
3. Briefly, the case of the complainant is that since the accused
and the complainant were acquainted with each other, accused
obtained loan amount of Rs.3,40,000/- on 03.01.2003 for business
purpose. Complainant paid the accused through cheque and
accused executed promissory note (Ex.P1) for the said amount on
03.01.2003 itself. Ex.P2 receipt was also executed by the accused.
The accused agreed to repay the amount and accordingly issued
cheque for Rs.3,40,000/- under Ex.P3 dated 24.01.2004. The said
cheque when presented for clearance on 05.04.2004 was returned
unpaid on 06.04.2004 on the ground of 'insufficient funds'. Legal
notice dated 26.04.2004 was issued to the accused informing the
return of cheque for payment of the amount covered by the cheque.
Having received the legal notice, since amount was not paid,
complaint was filed. Prior to filing the complaint, notice Ex.P9 dated
08.05.2004was sent by the accused.
4. Briefly, the defence of the accused is that the cheque was
subjected to theft and his signature was forged on the said cheque.
Accordingly, accused having taken photocopy of the cheque from
Court, sent it for the purpose of hand-writing examination and
opinion by an expert. R.W.1 is the said expert, who examined the
photocopy of the cheque and gave opinion vide Ex.D1 that the
signature on the cheque did not tally with the specimen signature of
the accused which was provided to him. Learned trial Judge, having
considered the evidence placed on record on both sides, found
favour with the defence version of the accused on the basis of
Ex.D1 hand writing expert report and opinion and acquitted the
accused.
5. Appeal was preferred by the complainant. Learned Sessions
Judge in appeal found that the trial Court has placed reliance on
the expert evidence and acquitted the accused when the opinion
was given on the basis of examining a photocopy. Such opinion
cannot be considered and accordingly reversed the judgment
finding favour with the version of the complainant that there was
outstanding which is payable to the complainant by the accused.
6. Learned counsel appearing for the accused would submit that
the accused had filed petition before the trial Court for sending the
original cheque to a Government hand writing expert to examine the
signature on the cheque. The said petition which was filed by the
accused was allowed by the trial Court. However, the complainant
himself has preferred revision against the order of the trial Court
directing the cheque to be sent to a hand-writing expert vide
Criminal Petition No.5613 of 2007. The said Criminal Petition filed
by the complainant was allowed vide order dated 24.03.2009. This
Court found that there was a delay of nearly two years in filing the
petition by the accused to send it to a Government hand writing
expert and that too at the stage of final arguments. The accused
was not diligent in ascertaining his rights and accordingly, Criminal
Petition was allowed setting aside the order of the learned
Magistrate in sending it to an expert.
7. Learned counsel argued that the complainant himself has
questioned the lower Court order and accordingly, original cheque
was not sent to the hand writing expert. The said conduct of the
complainant in approaching the High Court would reflect that the
complainant feared that there would be an adverse opinion by the
hand writing expert. For the said reason, an adverse inference has
to be drawn. Furthermore, the appellate court in appeal cannot
reverse an order of acquittal unless there are compelling
circumstances. The Trial Court has given reasons which are based
on record and probable. In the said circumstances, the appellate
Court cannot come to a different view and reverse the well reasoned
judgment of acquittal.
8. On the other hand, learned counsel appearing for the
complainant would submit that this Court in Criminal Petition
No.5613 of 2007 has given reasons for setting aside the order of the
lower Court. In fact, the said application to send it to an expert was
made to protract the proceedings. The case is of the year 2004 and
the petition to send the cheque to the Government hand writing
expert was made in the year 2007 which reflects that the
proceedings were deliberately being delayed. In the said
circumstances, the complainant has no other option but to
approach this Court seeking intervention and accordingly
Crl.P.No.5613 of 2007 was filed.
9. Having gone through the record, at first instance, it is not
known as to why no steps were taken by the accused to send
original cheque which was in the court to the hand writing expert
for the purpose of examination and opinion. However, the accused
adopted the method of taking certified copy of the cheque and sent
it to a private hand writing expert/R.W.1. R.W.1 had examined the
documents and gave opinion under Ex.D1. An expert would
examine the writings/signatures on basis of several factors
including pen pressure, the basic characteristics of the alphabets
being written, the movement of the pen in a particular direction etc.
All these aspects definitely cannot be assessed from a photocopy.
Accordingly, the finding of the learned Sessions Judge cannot be
interfered with.
10. In cases of revision, this Court can only examine the record
regarding correctness, legality or propriety of finding by the Court
below. Interference in criminal revision would be limited to any
glaring inconsistencies or illegality committed by the Court below.
Further, in case of any miscarriage of justice by not looking into the
evidence in the correct prospective, only under such circumstances,
the High Court can interfere.
11. The reasoning given by the learned Sessions Judge is
probable. The trial Court has relied on the opinion given on the
basis of examination of signature on the photocopy of the cheque.
As already discussed above, the opinion of an expert on the basis of
examination of photocopy cannot form sole basis to record
acquittal. The trial Court had erred in relying mainly on Ex.D1
report of the private hand writing expert. Accordingly, there are no
grounds to interfere with the conviction recorded by the learned
Sessions Judge in appeal by reversing the order of acquittal.
12. However, keeping in view that the transactions are of the year
2003 and nearly 21 years have passed by, the case being quasi
criminal in nature, this Court deems it appropriate that the fine
component be enhanced while reducing the sentence.
13. Accordingly, the fine is increased to Rs.5.00 lakhs to be paid
by the accused before the trial Court. The said amount shall be
deposited before the trial Court within a period of six weeks from
the date of receipt of this order by the trial Court. The fine amount
which has to be paid before the trial Court shall be paid to the
complainant as compensation. Failure to deposit the fine amount
within the prescribed time, the accused shall undergo default
sentence of three months.
14. Accordingly, both the Criminal Revision Cases are allowed in
part.
__________________
K.SURENDER, J
Date: 09.08.2024
kvs
