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IN THE HIGH COURT OF KARNATAKA, BENGALURU

DATED THIS THE 5th DAY OF AUGUST, 2016

BEFORE:

THE HON’BLE MR. JUSTICE K.N. PHANEENDRA

CRIMINAL REVISION PETITION NO.52/2016

BETWEEN 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-403 505 ... 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-572 116. ... RESPONDENT

(BY SRI G.B. NANDISH GOWDA, ADV. FOR SRI R.B. SADASIVAPPA, ADV.

®

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 RW. 401 OF CR.PC PRAYING TO SET ASIDE THE JUDGMENT DATED 20.11.2015 IN CRL.A. NO.124/2012 PASSED BY THE VI ADDL. DIST.

AND S.J. AT TUMKUR AND ORDER DATED 25.8.2012 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 15.7.2016 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 25.8.2012,

which is affirmed in Criminal Appeal No.124/2012

dated 20.11.2015 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

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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, 1881. 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, 1881.

Secondly he has taken up a specific contention that the

signature found on the cheque produced by the

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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

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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

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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

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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

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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.

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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 1.3.2008 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.835025 dated 7.3.2008 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.1459653 dated 4.6.2008 for

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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 4.6.2008. But the

said cheque was returned with an endorsement dated

10.6.2008 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 30.6.2008 through RPAD as

well as certificate of posting and the same was returned

‘as not claimed’ on 12.7.2008. 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

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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

22.7.2009. Therefore, he has taken immediate action.

It is also further contended that, during the course of

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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

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materials on record, the first appellate court vide

judgment dated 20.11.2015, 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

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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, 1881. 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

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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.

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13. 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

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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

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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

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(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, 1881. 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

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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

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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

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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

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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.

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17. 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.

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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

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law. Hence, the court has rejected the said

application.”

18(b) Another ruling reported in LAWS (KAR)-

2014-4-141 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

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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

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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.

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21. 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.

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22. 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

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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

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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

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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

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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 re-

appreciate 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

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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

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

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

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

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

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 31.7.2008, the court has taken

cognizance and after recording the sworn statement of

the complainant on 4.8.2008 ordered for issue of

summons to the accused. On 11.9.2008, 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 27.11.2008

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 17.6.2009 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

28.1.2009. These documents clearly discloses that the

accused has not only taken up the defence in a casual

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

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

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

that a doubt has been continued with regard to the

signature of the accused on Ex.P1.

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

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

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

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

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

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

25.8.2012 and also the judgment passed by the first

appellate court in criminal Appeal No.124/2012 dated

20.11.2015 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

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

1.9.2016 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 29.4.2016

requesting for handing over Ex.P1 disputed

cheque for investigation;

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*