IN THE HIGH COURT OF KARNATAKA, BENGALURU BEFORE: THE HON BLE MR. JUSTICE K.N. PHANEENDRA CRIMINAL REVISION PETITION NO.52/2016

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1 1 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 5 th DAY OF AUGUST, 2016 BEFORE: THE HON BLE MR. JUSTICE K.N. PHANEENDRA BETWEEN CRIMINAL REVISION PETITION NO.52/2016 SMT. NASREEN PASHA, W/O. T. PASHA, AGED 53 YEARS, RESIDING AT NO.1581, RABIA MANZIL, GOKULWADI, NEAR BAL MANDIR SCHOOL, SANQULIM, STATE OF GOA PETITIONER (BY SRI KESHAVA MURTHY, C.N., ADV. ) AND SRI MALIK AHMED, S/O. LATE MOHAMMED HAYATH, AGED 40 YEARS, RESIDING AT QUALITY CHICKEN CENTRE, B.M. ROAD, GUBBI TOWN, GUBBI TALUK, TUMKUR DISTRICT RESPONDENT (BY SRI G.B. NANDISH GOWDA, ADV. FOR SRI R.B. SADASIVAPPA, ADV.

2 2 THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 RW. 401 OF CR.PC PRAYING TO SET ASIDE THE JUDGMENT DATED IN CRL.A. NO.124/2012 PASSED BY THE VI ADDL. DIST. AND S.J. AT TUMKUR AND ORDER DATED IN CC NO.439/2008 PASSED BY THE JUDICIAL MAGISTRATE FIRST CLASS AT GUBBI AND ACQUIT THE ACCUSED FOR THE OFFENCES P/U/S/138 OF NI ACT. THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON AT PRINCIPAL BENCH, BENGALURU, COMING ON FOR PRONOUNCEMENT OF ORDER, AT DHARWAD BENCH, THIS DAY, THE COURT PASSED THE FOLLOWING: O R D E R The Revision Petitioner has preferred this Revision Petition seeking to set aside the judgment passed by the JMFC, Gubbi, in CC No.439/2008 dated , which is affirmed in Criminal Appeal No.124/2012 dated passed by the VI Addl. Dist. & Sessions Judge, Tumkur, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, and imposed sentence of Simple imprisonment for

3 3 six months and also fine of Rs.1,60,000/- with a default clause to undergo Simple imprisonment for a period of one month and also awarding an amount of Rs.1,50,000/- as compensation payable to the complainant out of the fine amount. 2. The petitioner being the accused has taken up the ground that, the trial Court as well as the first appellate court have not taken into consideration the evidence led by the parties in their proper perspective. The trial Court has committed serious error in not appreciating the evidence and failed to hold that the complainant has failed to prove the ingredients of Section 138 of the Negotiable Instruments Act, It is contended that the accused throughout has denied the non-service of notice as required to be served u/s.138 of the Negotiable Instruments Act, Secondly he has taken up a specific contention that the signature found on the cheque produced by the

4 4 complainant under Ex.P-1 is not that of the accused. It is further contended that, the petitioner has filed an application u/s.45 of the Indian Evidence Act, before the first appellate court requesting to refer the said cheque for handwriting expert s opinion. But the first appellate court has refused to consider the said application and erroneously rejected the same. The trial Court and the first appellate court have taken the place of the expert and they compared the signatures in the cheque with other admitted signatures of the accused in the vakalath and statement of the accused recorded u/s.313 of Cr.PC and came to the conclusion that the complainant has proved his case particularly the signature at Ex.P1(a) as that of the accused. The said finding is against to the principles of natural justice, as no opportunity has been granted to the accused to prove his defence. Both the courts have wrongly held that the accused has not taken any steps to prove the

5 5 defence taken up by her. Therefore, for all these reasons, the petitioner s counsel would argue before this Court in support of the said contentions and submitted that the Revision Petition deserves to be allowed and accused/petitioner is entitled to be acquitted and therefore, he requested the court to set aside the judgment passed by the trial Court and as affirmed by the first appellate court. Alternatively he also argued that, application filed by the petitioner u/s.45 of the Indian Evidence Act before the appellate court may be allowed and matter may be remitted to the trial Court for fresh disposal, with appropriate directions. 3. Per contra, the learned Counsel appearing for the respondent-complainant strenuously contended that, the complainant has established the case not only by narrating the factual aspects in the complaint but also proving the same by producing cogent and convincing evidence before the court. There are lapses

6 6 on the part of the accused, as she has not made any such application u/s.45 of the Indian Evidence Act before the trial Court nor she has placed any material to show that the said signature is not that of the accused. The evidence of the complainant and PW-2 who is the Bank Manager amplifies and probabalises that, the said signature at Ex.P-1(a) belongs to the accused. Therefore, the trial Court as well as the first appellate court have not committed any error in appreciating the evidence on record. The notice issued to the accused was also deemed to have been served on the accused. Hence, the trial Court has properly appreciated this aspect. Therefore, there is no ground made out before this Court to interfere with the judgment of conviction and sentence passed by the trial Court as affirmed by the first appellate court. 4. On hearing the learned Counsels for the petitioner as well as the respondent and after looking

7 7 into the entire materials on record, the only point that would arise for the consideration of this court is Whether the petitioner has made out any reasonable or substantial ground to interfere with the judgment passed by the trial Court as well as the appellate court? I am conscious of the legal status that, the Powers of the High Court and the Sessions Court while exercising the revisional jurisdiction is very limited. High Court can exercise its power either u/s.397 or 401 of Cr.PC considering the materials on record, where, it finds that there is a material error or defect in law or procedure, misconception or misreading of evidence, failure to exercise powers vested or wrong exercise of jurisdiction. As a broad proposition it can be stated that interference may be justified (a) where the decision is grossly erroneous; (b) where there is no compliance with the provisions of law; (c) where the finding of fact affecting

8 8 the decision is not based on the evidence; (d) where material evidence of the parties s not considered; and (e) where judicial discretion is exercised arbitrarily or perversely. Under such circumstances, the High Court or the revisional court can exercise its revisional powers. Normally, concurrent finding of fact shall not be interfered by the court, even an alternative view is possible on the same set of facts and circumstances. But if it falls under the categories noted above and if it amounts to gross violation of principles of natural justice or there appears a miscarriage of justice has been taken place, under such circumstances, the revisional court can venture upon to appreciate the evidence in order to advance substantial justice. Bearing in mind the above said principles, the court has to carefully scrutinize the material on record before exercising powers under the revisional jurisdiction.

9 9 5. It is just and necessary for this court to have brief factual aspects, before adverting to the grounds urged before this Court: It is the case of the complainant that the complainant and the accused are close relatives. In this context, the accused due to her inconvenience and urgencies approached the complainant on at Gubbi and requested for financial assistance for her immediate family necessities. Considering the relationship and also the difficulties of the accused, the complainant had advanced an amount of Rs.50,000/- by way of cash and Rs.1,00,000/- through DD bearing No dated drawn on Karnataka Bank Ltd., realised by the accused. On demand, the accused has agreed to repay the same to the complainant. For due discharge of the said amount, the accused had issued a cheque bearing no dated for

10 10 Rs.1,50,000/- drawn on The Goa State Co-Operative Bank Ltd., Bicholim Branch, Goa. On trusting the accused, the complainant has presented the cheque through his SB account at Gubbi on But the said cheque was returned with an endorsement dated stating that the funds in the said account was insufficient to honour the said cheque. The complainant in fact after receiving the said endorsement issued a legal notice dated through RPAD as well as certificate of posting and the same was returned as not claimed on Thereafter within the period of limitation, i.e., from the date of deemed service of notice on the accused, the complainant has filed the complaint before the trial Court. 6. The accused petitioner has appeared before the court and contested the complaint on various grounds as noted above and as already argued by the learned Counsel for the petitioner. It is the defence of the

11 11 accused that the complainant himself has taken an amount of Rs.2 lakhs from the accused and has agreed and returned a sum of Rs.50,000/- by cash and one lakh through DD. Out of Rs.2 lakhs he is still due in a sum of Rs.50,000/-. But the said transaction has been converted by the complainant for his wrongful gain and in fact due to the close relationship between the accused and the complainant, the complainant has stolen three cheques from the house of the accused and got filed the frivolous complaint in order to enrich himself at the cost of the accused. In fact having come to know about the theft of three cheques, the accused petitioner has lodged a complaint before the JMFC, Bicholim court against the respondent for the offence punishable under Section 380, 465, 469 and 471 of IPC and FIR was registered in Crime No.106/2009 dated Therefore, he has taken immediate action. It is also further contended that, during the course of

12 12 evidence the complainant has not proved the signature on the cheque as that of the accused beyond reasonable doubt. Therefore, the accused has pleaded for dismissal of the complaint and consequently for her acquittal. 7. During the course of trial, the complainant examined himself as PW-1, the Bank Manager Rathnakanth Shirodkar was examined as PW-2 and got marked as many as 7 documents Exs.P1 to P7. The accused was also examined as DW-1 and got marked Exs.D1 to D12. After appreciation of the entire materials on record, the trial Court rendered the judgment of conviction and sentence as detailed above. 8. Being aggrieved by the said judgment of conviction and sentence, the Revision Petitioner has approached the first appellate court in Crl. Appeal No.124/2012 before the VI Addl. District and Sessions Judge at Tumkur. On re-appreciation of the entire

13 13 materials on record, the first appellate court vide judgment dated , has dismissed the appeal by confirming the judgment of conviction and sentence passed by the trial Court. 9. During the course of appeal, the Revision Petitioner has also filed an application u/s.45 of the Indian Evidence Act seeking reference of Ex.P1, the disputed signature on the cheque for Handwriting expert s opinion. The first appellate court after hearing in detail and considering the materials placed before it, has come to the conclusion that there was no necessity for sending the cheque for the expert s opinion. Therefore, while dismissing the appeal, it also dismissed the said application. 10. Now, this court has to see whether such findings by the trial Court and the first appellate court is proper and whether the accused is entitled for

14 14 reference of the cheque to the expert s opinion as sought for in the application filed u/s.45 of the Indian Evidence Act before the first appellate court. 11. Though the leaned counsel for the petitioner has taken up the contention that legal notice has not been duly served on the petitioner and that, the complainant has not complied with the mandatory requirement of Section 138 of the Negotiable Instruments Act, But the counsel has not concentrated much so far as this ground is concerned. He mainly concentrated his arguments with regard to the second point raised i.e., the comparison of the signature by the trial Court and as affirmed by the first appellate court so far as it relates to the signature of the petitioner on the disputed cheque. Though it is not seriously contested, however this court also perused the materials available on record, the document produced and marked at Ex.P-7, the notice issued to the

15 15 petitioner has returned with a postal shara that in spite of the intimation delivered, the petitioner has not claimed the said postal cover. But subsequently, the summons issued to the said address mentioned in Ex.P7, the accused petitioner was served with the said summons and he has appeared before the court. 12. As could be seen from the cross examination of PW1, there is no cross examination so far as this aspect is concerned that notice issued to the accused has not been properly served. Further added to that the accused has not taken any steps to examine the postal authorities to establish that the endorsement made by the postal authorities on the said document is false. Therefore, the findings given by the trial Court as well as the first appellate court so far as this aspect is concerned is well founded and it does not call for any interference.

16 The very important and prime ground taken up by the petitioner is that the trial Court and the first appellate court have committed serious error in comparing the signature of the petitioner on the cheque u/s.73 of the Indian Evidence Act and they have not followed proper procedure in order to afford sufficient opportunity to the petitioner to establish her defence either before the trial Court or before the first appellate court. It is contended by the learned Counsel for the petitioner that the complainant has lodged a complaint before the jurisdictional Magistrate immediately after coming to know about the signature on the cheque being forged by the complainant. He lodged a complaint before the competent court and in fact the court has ordered for investigation in this regard. To that extent, some documents have also been produced before the court. The Goa police have also requested the trial Court to handover the said cheque for investigation in

17 17 order to ascertain whether the said cheque is forged by the accused in the said case. It is further argued that the Bank Manager who has been examined as PW2 has said in the examination in chief itself that, the signature on the disputed cheque is not the signature of the accused. Therefore, the trial Court and the first appellate court have committed serious error in solely relying upon comparison of the signature u/s.73 of the Indian Evidence Act to convict the accused. Therefore, the said finding is liable to be reversed by this court. 14. Per contra, the learned Counsel appearing for the respondent strenuously contended that the Court not only compared the signature on the cheque u/s.73 of the Indian Evidence Act, but also considered the other materials i.e., the cheque being dishonoured not on the variation in the signature but on the ground of want of funds in the account of the accused. It is not disputed that the cheque does not belong to the

18 18 accused. Further, the accused has not made any application before the trial Court u/s.45 of the Indian Evidence Act. Therefore, inevitably and rightly the trial Court has compared the signature exercising its powers u/s.73 of the Indian Evidence Act. Therefore, there is absolutely no mistake committed either by the trial Court or the first appellate court in this regard. 15. Before adverting to discuss with the above ground on the basis of the evidence adduced by the parties, it is just and necessary to go through the decisions cited by the learned Counsels in this regard in order to ascertain as to how and in what circumstances the court can exercise powers u/s.45 and 73 of the Indian Evidence Act. 16. The leaned counsel for the petitioner has relied upon a ruling reported in (2007) 2 SCC 258 between Kalyani Baskar (Mrs.) Vs. M.S. Sampoornam

19 19 (Mrs.), wherein the Hon'ble Apex Court has observed in the following manner: Power of the Magistrate in sending a document for expert s opinion in respect of the dishonoured cheque u/s.138 of the Negotiable Instruments Act, Prayer by the accused to send that cheque for opinion of the handwriting expert to ascertain the genuineness of the signature on it. Magistrate should have granted such a request unless he considers that the object of the accused is vexatious or delaying the criminal proceedings, accused was entitled to rebut the case of the complainant. Cheque on which complainant relied upon for initiating criminal proceedings against the accused furnished good material for rebutting that case. By declining to send the said document for examination and opinion of the handwriting expert, the Magistrate deprived the accused of an opportunity of rebutting it. Accused could not be convicted without an opportunity being given to her to present her

20 20 evidence. Denial of the said opportunity would lead to an unfair trial u/s.45 of Indian Evidence Act. It is essential that rules of procedure designed to ensure justice should be scrupulously followed and the courts should be jealous in seeing that there is no breach of them. Fair trial includes a fair and proper opportunities allowed by law to prove the innocence of the accused adducing evidence in support of the defence is a valuable right and denial of such right means denial of fair trial. 16(a). In another ruling reported in AIR 2012 SCW 5492 between Ajay Kumar Parmar Vs. State of Rajasthan wherein the Hon'ble Apex Court at paragraph 23 has opined in the following manner: 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

21 21 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

22 22 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. 16(b). In another decision reported in (2008) 5 SCC 633 between T. Nagappa Vs. Y.R. Muralidhar, the Hon'ble Apex Court has observed thus What should be the nature of evidence in a case, is not a matter which should be left only to the discretion of the court. It is the accused who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused in terms of sub-section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to the summoning of witnesses, etc., If permitted to do so, steps therefore, however, must be

23 23 taken within a limited time as the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant. Rejection of bonafide application of the appellant u/s.243(2) of the code for issuing process to substantiate his defence in respect of the cheque,held is improper. It is also held that the non mentioning of a correct provision and mentioning of a wrong provision would not be of any relevance if the court has the requisite jurisdiction to pass an order on the application. 16(c). In the said case before the Hon ble Supreme Court also, the accused has filed an application u/s.293, but the substance of the application was for referring the cheque in question for examination by the Director of Forensic Science Laboratory for determining the signature of the accused.

24 On the basis of the above said rulings, the leaned counsel for the petitioner submitted that the courts have to give fullest opportunity to the parties to prove their cases which has not been done by the trial Court as well as the first appellate court in this case. 18. Countering the above said submissions made by the leaned counsel for the petitioner, the learned counsel for the respondent also relied upon a decision of this court reported in ILR 2007 KAR 247 between S.B. Ittigi and another Vs. S.V. Sulochana and Others, wherein this court dealing with Section 73 of the Indian Evidence Act held that The court has the power to compare the disputed signature with the admitted signature. When the court entertains the slightest doubt with regard to the signatures, then the court shall hesitate to compare the signature.

25 25 It is further observed that both the plaintiff and the defendants have not taken steps to secure the opinion of the handwriting experts. Under those circumstances, the court has to compare the disputed signature u/s.73 of the Indian Evidence Act. 18(a). In another ruling reported in ILR 2007 KAR 936 between H.M. Satish Vs. B.N. Ashok, this court while dealing u/s.45 of the Indian Evidence Act, has observed that Referring the cheque for opinion of a hand writing expert, order of the Magistrate allowing the application. In the case of denial of signature of a drawer of a cheque, the best witness would be the concerned Bank Manager and not the hand writing expert. The learned Magistrate has not appreciated the facts on record while allowing the application. The application was allowed solely on the ground that the accused would be put to greater hardship if the application is rejected. Impugned order not sustainable in

26 26 law. Hence, the court has rejected the said application. 18(b) Another ruling reported in LAWS (KAR) between N. Muniswamy Reddy Vs. M. Narayanaswamy, cited by the learned counsel for the respondent in my opinion, is not relevant because of the reason that in the said case, there was an admission on the part of the accused having put the signature on the said cheque. The dispute was only with reference to the contents of the cheque not being written by the accused and according to the accused, the same was filled up by the complainant in his hand writing. Therefore, the court has rejected the said application on the ground that the signature on the complaint has been admitted by the accused. 19. On perusal of the above said rulings, it is clear that ultimately, it is the discretion of the court either to refer the disputed signature to the expert or to

27 27 compare the signature by itself u/s.73 of the Indian Evidence Act. But under what circumstances, the court can do that particular exercise is the question that has to be examined meticulously. In the above said rulings, the principles of natural justice and opportunity to the accused have been high lighted and further under what circumstances, cheque may not be sent for expert s opinion is also narrated in the decisions quoted above. Ultimately, the courts have to find out whether the cheque in dispute requires to be sent for expert s examination. It all depends upon the facts and circumstances of each case and the court has to exercise a sound judicious discretion. In this background, the court has to see whether the trial Court and the first appellate court have exercised such judicious discretion. 20. It is the fundamental basic principles of criminal jurisprudence that the case of the prosecution

28 28 has to be proved beyond reasonable doubt, by means of producing cogent and convincing evidence before the court. The court can adjudicate the rights and liabilities of the parties on the basis of appreciation of such evidence placed before the court with the help of the procedure recognized under the procedural laws. Particularly the Indian Evidence Act envisages as to what are all the relevant facts and how the court can permit the parties to produce or requires those relevant facts before the court. There is no dispute whatsoever with regard to the relevancy of an experts opinion u/s.45 of the Indian Evidence Act. The opinion of the expert is well recognized as a relevant fact and the parties can produce evidence before the court in order to prove the relevant fact in turn on the basis of such relevant fact, the court can adjudicate the fact in issue between the parties to the proceedings.

29 It should be borne in mind by the courts that if there is a positive denial by a person who is said to have affixed his signature or finger impression and where such signature and impression in the disputed document is vague and smudgy or not clear and making it difficult for comparison, the Judge should hesitate to venture a decision based on his own eyes, regarding the disputed signature with that of the admitted signature. Further, in a case where the court is constrained to take up such comparison, then it should make a thorough study, with the assistance of the counsel and a magnifying lens to ascertain the characteristics, similarities and dis-similarities of the compared signature. Necessarily, the judgment should contain the reasons and the efforts made to reach such a conclusion based on comparison of the signature if the court chooses to record a finding thereon.

30 Though there has been no legal bar for the judges using their own eyes for comparing the signature with the admitted signature but the court should be very cautious and more over as a matter of prudence extreme care has to be taken. The court should not normally take upon itself the responsibility of comparing the disputed signatures with that of the admitted signature and it should hesitate to pass its findings with regard to the identity of the signature solely on the comparison made by itself. 23. The power u/s.73 of the Indian Evidence Act can be exercised by the Magistrate. Section 73 Indian Evidence Act can be exercised by the court normally and generally to test the veracity of the opinion given by the expert or the other evidence adduced on the point by any of the modes enumerated under the procedural laws. Even if there were to be any difference in the signatures, the court should not venture upon to

31 31 examine the same unless expert s opinion is also available on record. Therefore, the court looking into the facts and circumstances of each case has to venture upon carefully and rarely exercise the powers conferred u/s.73 of the Indian Evidence Act. It can be safely said that it is always hazardous and risky when it is said that the accused in a particular given case has specifically and stubbornly denied his signature or finger impression on the disputed document and also placed certain materials before the court to establish that the examination of such signature requires an Expert s opinion. 24. It is true that the courts are called as expert of experts. But such using of the words will not make the court as an expert in the true sense. It is said in that manner, because the opinion of the court is conclusive even on appreciation of the expert s opinion. The court is empowered to appreciate the expert s

32 32 opinion on the basis of the materials on record and conclusively give its finding which is binding on the parties. The mere opinion of an expert is neither binding on the court nor binding on the parties. Even by giving cogent reasons court can reject the expert s opinion. It is the opinion of the court after appreciating all the evidence on record that becomes an authoritative pronouncement of adjudication of the rights of the parties. Therefore, in this context, the court is recognized as an expert of experts. But it does not mean to say that the court can step into the shoes of an expert always in order to do the job of an expert. Therefore, the court would only take it as a last resort, when it is inevitable to compare the signatures u/s.73, while doing so it should bear in mind the above said important aspects. 25. In this background, now let me consider whether the Trial Court or the first appellate court have

33 33 compared the signatures with all care and that, the refusal of the opportunity to the accused in order to prove his defence is proper and correct. 26. The Trial Court in its judgment has considered this aspect while comparing the signatures of the accused and it observed that, the Manager of the Goa State Co-operative Bank, who is examined as PW-2 has stated that the cheque has not been dishonoured due to the reason that, the signature of the drawee does not tally. But it is specifically stated that the cheque was dis-honoured due to insufficiency of funds. The court has also stated that Ex.D-12 is the vakalath filed before the court bears the signature of the accused and it compared the signature found in Ex.P1 and Ex.D12 and also in the depositions of the accused and also in his 313 statement and thereafter in one line, it is stated that the signature of the accused appears to be similar in all these documents. Therefore, the Court

34 34 was of the opinion that the accused has failed to establish her defence and rebut the evidence of the complainant. 27. Even if it is said that the accused has not established that, the complainant has stolen those cheques and mis-used the same, but except in one sentence, the court has not specifically mentioned as to in what manner the court has come to the conclusion that the signatures are similar. What are the similarities that the court found between the admitted signature and the disputed signature. It is only in a very casual manner, on plain glancing the signature, the court has come to such conclusion. Likewise, the first appellate court also not taken any pains to reappreciate the observation made by the Trial Court. It is observed by the appellate court that the Trial Court has got power to compare the disputed signature with that of the admitted signatures and the Trial Court has

35 35 done the same in accordance with law and therefore, the act of the Trial Court does not call for any interference. The first appellate court has also not taken care to compare the signature particularly mentioning the similarities or dis-similarities in the signatures which can be prima facie visualised by means of looking at the signatures with bear eyes. 28. In this background, it is worth to note here that, in a decision reported in AIR 2008 SC 1541 between Thiruvengada Pillai Vs. Navaneethammal and another wherein the Hon'ble Apex Court has observed that: The comparison of two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appears to be no marked differences between the admitted thumb impression and the disputed thumb impression without anything more cannot be

36 36 accepted as a valid finding that the disputed thumb impression is of the person who is put the admitted thumb impression. Where the court finds that the disputed finger impression and admitted thumb impression are clear and the court is in a position to identify the characteristics of finger prints, the court may record a finding on comparison, even in the absence of an experts opinion. But where the Court finds that the disputed finger/thumb impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal. 29. In view of the above said decision, the observation made by the Trial Court or by the appellate court without culling out the marked differences between the admitted signatures and the disputed signatures or marked characteristics which show the similarities between those signatures such casual glancing observation of the signature and giving finding that those signatures appears to be similar cannot be

37 37 accepted as a valid comparison by the court. Therefore, the courts while appreciating the signatures of the parties while comparing them u/s.73 of the Indian Evidence Act, must be very carefully by using a magnifying lens ascertain as to what are the characters in the signature which makes the admitted and disputed signature appears to be similar. Then only the court in the absence of experts opinion, may draw such an inference on the basis of the other evidence on record. Such important aspects are conspicuously missing so far as the observation made by the Trial Court as well as the first appellate court, are concerned in this case. 30. Before adverting to the appreciation of the facts in this case, it is also necessary to note here as to under what circumstances, the court can reject such prayer of the accused for sending the disputed signature for expert s opinion. It is made clear from ample

38 38 number of rulings that when the court is of the opinion that in the evidence adduced by the parties, there is sufficient convincing and conclusive material showing admission of the accused regarding his signature on the disputed document. It is also to be noted that when it is established that the accused has been making all sorts of delaying tactics to protract the proceedings and for any other reason or the defence is very casual and baseless and where the court can draw an inference with regard to the conclusiveness of his signature. Under such circumstances, by exercising judicious discretion, the court can refuse to grant the request of the accused, otherwise normally adhering to the principles of natural justice, the court should always lean in favour of granting such prayer for sending the disputed signature to the experts. 31. Now, coming to the factual aspects of this case, as I have observed that right from the beginning

39 39 the accused has taken up the contention that the signature found on the cheque does not pertains to him and the cheques have been stolen by the complainant and the cheques have been misused. Though no sufficient materials have been placed as observed by the Trial Court with regard to the theft of cheques, but it will not absolve the complainant from proving the signature on the cheque as that of the accused. The court is not dealing with a civil matter between the parties. It is a well recognized profound legal principle of law that in a criminal case, the prosecution has to prove the case against the accused beyond reasonable doubt. On the other hand, the defence taken up by the accused can be proved by preponderance of probabilities. In order to draw an inference against the accused the courts verdict must be certain and it should be conclusive in nature. Therefore, the court has to very carefully observe the stand taken by the

40 40 accused and what are the materials placed before the court. 32. The records produced before the court which are marked at Ex.D5 to D8 discloses that the present complaint was filed on , the court has taken cognizance and after recording the sworn statement of the complainant on ordered for issue of summons to the accused. On , the accused appeared before the court. It is the case of the accused that immediately after coming to know about the said cheque being produced before the court, on which a complaint has been lodged, he came to know that the signatures are forged in the said cheques. Therefore, he lodged a complaint in Crl.Misc.No.71/2008 on the file of the Judicial Magistrate, Bicholim, Goa. The records discloses that as per Ex.D5, Ex.D-10, the complaint was lodged before the said judicial Magistrate on

41 41 i.e., immediately two months after the accused appeared before the Trial Court. 33. The learned JMFC of Bicholim, Goa after going through the contents of the complaint ordered for investigation on in the said Crl. Misc. No.71/2008. Subsequently, the accused before the Trial Court has filed an application u/s.258 of Cr.P.C. seeking stopping of the further proceedings on the ground that a criminal case is filed before the Goa Jurisdictional court wherein the accused in this case has taken up the contention that the cheques were stolen, forged and mis-used by the complainant. It is also seen from the records that the Goa Bhicholim Police have made a request to the Trial Court to handover the said cheque to the police for investigation. However, the Trial Court has rejected the same on These documents clearly discloses that the accused has not only taken up the defence in a casual

42 42 manner with reference to the theft of the cheque and also the forgery of the signature on the said cheques, he has taken the step of lodging a complaint before the proper court. The said case is still pending as records disclose even the said Goa Police have made such request before the first appellate court and also before this court that shows that, the said case is not yet investigated and still it is pending. Therefore it cannot be said that the accused defence is bereft of any materials on record. 34. Let me glance through the oral evidence adduced by the parties. In the cross examination of PW1 it is specifically suggested that, the cheques were stolen because of the close relationship between the complainant and the accused and specifically it is suggested that the signature found on the cheque Ex.P1 marked at Ex.P1(a) is not that of the signature of the accused and the said cheque has been mis-used by the

43 43 complainant. Even the said stand has been consistently taken during the course, by the accused while leading his evidence who is examined before the court as DW1. Wherein it is categorically stated by producing the certified copy of the proceedings before the JMFC Bhicholin, Goa that the said cheques have been subjected to theft and they were forged and mis-used by the complainant. 35. PW2 Rathnakanth, Manager of The Goa State Co-operative Bank, Bicholim Branch, Goa, where the accused has maintained an account, has appeared before the court at the request of the complainant and in fact, he has stated in his evidence that the accused was having SB Account in their Branch and Ex.P1 is the cheque issued by the accused. But it is specifically stated in the evidence that the signature at Ex.P1(a) found on Ex.P1 is not the signature of the accused. Of course this is an isolated sentence in the evidence not

44 44 based on any other logical material in the evidence of this witness. Further he has stated that the cheque was dis-honoured only due to insufficiency of funds and not for any other reason and also he has seen Ex.D1, the cheque book of the accused containing 10 cheque leaves etc., Conspicuously, this witness has not stated anything about the comparison of the signature of the accused with the specimen signature in the Bank. Neither the complainant nor the accused have taken any steps to secure the specimen signature from the Bank for the purpose of identification of the signature of the accused. The court also did not take any interest in this regard in order to compare those signatures with that of the signature on Ex.P1 and that would have been the best evidence placed by the complainant before the Court, when the complainant himself examined PW2 on his side before the court. Therefore, the fact remains

45 45 that a doubt has been continued with regard to the signature of the accused on Ex.P 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

46 46 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

47 47 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

48 48 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

49 49 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 mis-used 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,

50 50 commensurate with the conduct of the accused and the offence committed. 41. In view of the above said reasons, the following order is passed: ORDER The Criminal Revision Petition is hereby allowed. Consequently, the judgment of conviction and sentence passed by the Trial Court in CC No.439/2008 dated and also the judgment passed by the first appellate court in criminal Appeal No.124/2012 dated are hereby set aside. Further, the application filed by the accused before the appellate court u/s.45 of the Indian Evidence Act is hereby allowed. The Trial Court is hereby directed to send the disputed signature on the cheque Ex.P1(a) with admitted signatures to the Forensic Science Expert for examination and report.

51 51 Thereafter if necessary, allowing the parties to lead further evidence and considering all the materials on record shall dispose of the case afresh in accordance with law. Further, (1) In order to avoid unnecessary delay, the parties are directed to appear before the trial Court on and assist the court for early disposal of the case; (2) The trial Court is directed to pass appropriate orders on the requisition made by the Bicholim Police, Goa, seeking handing over the disputed cheque Ex.P1 at the time of disposal of the case; (3) The Registry is also hereby directed to send back the records to the trial Court forthwith along with the request letter made by the Bicholim Goa Police dated requesting for handing over Ex.P1 disputed cheque for investigation;

52 52 (4) Registry is also directed to intimate the concerned Goa Police, Bicholim, about the operative portion of this order. Ordered accordingly. Sd/- JUDGE PL*