IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC No. 219 Of 2012
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with I.C.C. Case No.273 of 2010
pending on the file of S.D.J.M., Bhubaneswar.
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M/s. Survika Distributors Pvt. Ltd. & another ……. Petitioners
-Versus-
M/s. S.R. Retail Zone
Pvt. Ltd. ....... Opposite party
For Petitioners: - Mr. Abhinash Barik
For Opposite Party: - None
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing & Judgment: 05.02.2018
————————————————————————————————— S. K. SAHOO, J. The petitioners have filed this application under section 482 of Cr.P.C. for quashing the impugned order dated 06.01.2012 passed by the learned S.D.J.M., Bhubaneswar in I.C.C. Case No.273 of 2010 in rejecting the petition filed by the petitioners for sending Exts.3 to 5 and Exts.9/1 and 9/2 to the handwriting expert along with admitted writings of the complainant and the accused persons with a direction to make examination of the questioned documents and to submit the report.
Though another petition was filed by the petitioners for summoning Inspector in charge of Keonjhar police station to produce S.D. Entry No.148 dated 29.08.2009 and to issue summons to the Post Master, G.P.O. to prove the delivery of the letter dated 18.11.2009 to Nihar Ranjan Patnaik and the said petition was also rejected as per the impugned order but the learned counsel for the petitioners confined his challenge to the rejection of the petition relating to the sending of the exhibits to the handwriting expert for examination and report.
The factual scenario of the case indicates that the opposite party is the complainant in I.C.C. Case No.273 of 2010 and the petitioners are the accused persons. The complaint petition was filed for prosecuting the accused persons under section 138 of the Negotiable Instruments Act, 1881.
During course of trial, on 23.12.2011 a petition was filed by the petitioners to send the Exts.3 to 5 as well as Exts.9/1 and 9/2 to the handwriting experts along with admitted writings of the complainant and the accused persons for examination and report. It is the case of the petitioners that Exts.3 to 5 were blank signed cheques which were handed over to the complainant on good faith for use of the same whenever required by the petitioners for the purpose of their business at Bhubaneswar as they were residing at Keonjhar but the cheques were misutilized by the complainant by filling up the blank entries in the cheque and mentioning the date and amount. It is the further case of the petitioners that the admitted handwritings of the accused persons are required to be compared with the handwritings on the body of the cheques and by making such examination, it can be ascertained that the cheques had not been filled up by the accused persons though they are not disputing the signatures on the same. It is also contended that Exts.9/1 and 9/2 are the postal acknowledgements which do not bear the real signatures of the accused Dibyendu Pattnaik and Subendu Pattnaik and therefore, the admitted signatures of these two co-accused persons with the signatures appearing on the receipt portion of the ADs are required to be compared. The prayer was opposed to by the complainant, inter alia, on the ground that there was no necessity to send the above documents to the handwriting expert for comparison and report.
The learned S.D.J.M., Bhubaneswar after taking note of the contentions raised by the respective parties has been pleased to hold that whereas the complainant’s claim is that the cheque in completed form containing the signatures of accused Dibyendu Pattnaik had been given to the complainant to discharge their legally enforceable debt but on perusal of the cheques, it appears that accused Dibyendu Pattnaik had given his initial signatures on all the cheques i.e. Exts.3 to 5 and therefore, it is not possible to make comparison of the initials with the details of handwriting appearing on the other parts of the cheques. The learned Magistrate further held that the chance of writing of the cheques by somebody and thereafter putting of the signatures of the account holder cannot be ruled out and it is the burden on the accused persons to establish their plea regarding issuance of blank cheques by adducing evidence. The learned Magistrate further held that the examination of the contents of the cheques with the initial signature of accused Dibyendu Pattnaik will no way help the Court for proper adjudication of the dispute. So far as Exts.9/1 and 9/2 are concerned, those were the postal acknowledgments cards which were received by the accused persons with reference to the notice issued by the complainant vide postal receipts Ext.8 and 8/1. The notices had been given in the correct address of the accused persons as mentioned in the company muster roll Ext.1 and therefore, the examination of those ADs by the handwriting expert will in no way help the Court for proper adjudication of the dispute. Accordingly, the petition filed by the accused persons for sending the EXts.3 to 5 and 9/1 and 9/2 to the handwriting expert was rejected.
None appears on behalf of the opposite party.
Mr. Abhinash Barik, learned counsel appearing for the petitioners contended that when a specific plea has been taken by the accused persons that on good faith the blank signed cheques were kept with the complainant which were misutilized by him and the date, amount and other details were filled up by the complainant in the cheques Exts.3 to 5, in the interest of justice, the cheques should have been sent to the handwriting expert for comparison with the admitted handwritings of the complainant and the accused persons and by refusing to entertain such prayer has caused serious prejudice to the petitioners. It is further contended that when it is the case of the petitioners that the accused persons were not residing in the address given in the postal ADs and some other persons have received the notice and put the signatures in the names of accused and the signatures appearing on the postal ADs were not that of the accused persons, the learned Magistrate should not have rejected the petition in sending the Exts.9/1 and 9/2 to the handwriting expert for comparison of signatures of the recipients appearing therein with the admitted signatures of the accused persons for comparison.
Considering the submissions made by the learned counsel for the petitioners, one thing is clear that the accused persons are not disputing that the signatures which are appearing in the cheques Exts.3, 4 and 5 to be that of accused Dibyendu Pattnaik but they are disputing that the other entries in the cheques like date and amount etc. are not that of either accused Dibyendu Pattnaik or of any other accused and those were filled up by the complainant who is stated to be in possession of blank signed cheques or by somebody at the instance of the complainant.
In view of such specific stand taken by the accused persons during trial, I am of the humble view that in the interest of justice, it is necessary that there should have been a direction for examination of the other entries appearing in the cheques Exts.3, 4 and 5 apart from the admitted signatures with the admitted handwritings of the accused persons as well as the complainant in order to ascertain the truth. After obtaining the handwriting expert opinion, the learned Magistrate could have assessed the oral evidence as well as documentary evidence coupled with handwriting expert’s opinion in order to find out the truth. Whether the case of the complainant that he was handed over signed cheques Exts.3, 4 and 5 in a completed form is correct or the plea taken by the accused persons that those were blank signed cheques given to the complainant on good faith which have been misutilized by the complainant is correct could have been judged thereafter. Law is well settled that the report of handwriting expert is not the conclusive proof of evidence and it is after all opinion evidence and it should be supported by reasons and the Court has to evaluate the same like any other evidence. It is for the Court to judge whether the opinion has been correctly reached on the data available or not. By not entertaining the prayer of the accused persons in sending the Exts.3 to 5, the learned Magistrate has prevented the accused persons in proving their defence plea in a better manner.
Similarly, it is contended that the signatures appearing as recipients of the notices in the postal ADs Exts.9/1 and 9/2 are not that of the accused persons and the accused persons are residing at Keonjhar and somebody else has put their signatures. In view of the stand taken, it was very much necessary to send Exts.9/1 and 9/2 to the handwriting expert for comparison of signatures appearing therein with the admitted signatures of the accused persons. The learned Magistrate seems not to have kept the valuable purpose behind the filing of the petition for sending the exhibits to the handwriting expert. The observation of the learned Magistrate that sending of the exhibits to the handwriting expert will no way be helpful to the Court for proper adjudication of the dispute is a pre-determination of the issues involved and therefore, I am of the view that the impugned order dated 06.01.2012 passed by the learned S.D.J.M., Bhubaneswar is not sustainable in the eye of law.
Accordingly, the impugned order is set aside. The learned S.D.J.M., Bhubaneswar is directed to send the Exts.3 to 5 and Exts.9/1 and 9/2 to the handwriting expert along with the admitted writings of the complainant and the accused persons of the contents of the cheques as well as the signatures of the accused persons for making necessary examination of the questioned documents and to submit the report as expeditiously as possible. After receipt of the handwriting expert report, the learned S.D.J.M., Bhubaneswar shall proceed with the case in accordance with law.
With the aforesaid observation, the CRLMC
application is allowed.
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S. K. Sahoo, J.
Orissa High Court, Cuttack
The 5th February, 2018/Sisir