THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Revision Case No.2221 of 2010 (Dated : 21-01-2011) Between: Smt. Jameela Banu Nulakapet village, Tadepalli (M) Guntur …Petitioner A n d Shaik Kader Vali and State of A.P., rep.by the Public Prosecutor, High Court of A.P., Hyderabad. …Respondent THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Revision Case No.2221 of 2010 ORDER: This revision is directed against the order dated 09.11.2010 passed in Crl.M.P.No.6869 of 2010 in C.C.No.132 of 2010 on the file of the XVI Additional Judge-cum-XX Additional Chief Metropolitan Magistrate, at Hyderabad, whereby and whereunder, the learned Additional Chief Metropolitan Magistrate dismissed the application filed under Section 45 of the Indian Evidence Act read with Section 293 Cr.P.C. 2. The 1st respondent herein is the complainant and whereas the petitioner herein is the accused in C.C.No.132 of 2010 on the file of the XX Additional Chief Metropolitan Magistrate, Nampally. The 1st respondent-complainant filed a complaint against the petitioner alleging inter alia that the petitioner-accused borrowed an amount of Rs.1,00,000/- on 8.2.2004 to meet the expenses and executed a promissory note promising to repay the same with interest at 36% per annum. The petitioner-accused issued a cheque bearing No.163080 dated 22.5.2005 for Rs.1,20,000/- drawn on Coastal Local Area Bank Limited, Guntur, towards part payment of the amount under pro-note dated 8.2.2004. He deposited the cheque for collection with his banker- State Bank of Hyderabad, MCH, Tank Bund Branch, Hyderabad on 3.10.2005. The cheque came to be returned with an endorsement “insufficient funds”. Thereupon, a notice has been issued to the petitioner-accused calling upon her to make good the amount covered under the cheque in question. The petitioner-accused having received the notice failed to comply the demand. She has not even issued a reply. Hence, the respondent-complainant filed a complaint before the XX Additional Chief Metropolitan Magistrate, Nampally, Hyderabad. 3. The learned Magistrate took the complaint on file as C.C.No.132 of 2010 and issued process. The petitioner-accused entered appearance. He denied the accusations leveled against him. The respondent-complainant examined himself as Pw-1 and exhibited the promissory note as Ex.P-1 and the cheque issued by the petitioner-accused as Ex.P-2. 4. It is the plea of the petitioner-accused that she handed over Exs.P-1 and P-2 to the father-in-law of the complainant at Guntur. After completion of evidence on behalf of the respondent- complainant, the petitioner-accused moved Crl.M.P.No.6869 of 2010 under Section 45 of the Indian Evidence Act to send Ex.P-2 cheque to an handwriting expert. The respondent-complainant filed counter resisting the application. 5. The learned Magistrate, on considering the material brought on record and on hearing the counsel appearing for the parties, proceeded to dismiss the application by order dated 09.11.2010. Hence, this revision. 6. When the revision came up for admission, the 1st respondent entered appearance through a counsel. 7. Heard learned counsel appearing for the parties. 8. Learned counsel appearing for the petitioner submits that the opinion of the expert with regard to the genuineness of the signature of the petitioner appearing on Ex.P-2 cheque is essential to arrive at a just conclusion in the case. He contends that the petitioner has denied of her issuing cheque to the respondent- complainant and the same has been fabricated by the father-in-law of the respondent-complainant. He would further contend that the trial Court has not properly considered the pleas taken by the petitioner-accused in defence and thereby, erred in dismissing the application. In support of his submissions, reliance has been placed on the judgment of the Supreme Court in T.Nagappa v. Y.R.Muralidhar[1]. In the cited case, it has been held that the accused has a right to make an application under Section 243(2) of the Code of Criminal Procedure for issue of process to substantiate his defence in respect of the cheque in question. It is further held in the cited case that when a contention has been raised that the complainant has misused the cheque, even in a case where a presumption can be raised under Section 118(a) or 139 of the said act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. Paras 8 and 9 of the cited judgment need to be noted and they are thus:- “ An accused has a right to fair trial. He has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognized by Parliament in terms of sub-section (2) of Section 243 of the code of Criminal Procedure, which reads as hereunder: “243. Evidence for defence.-(1) * * * * * (2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing: Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice”. 9. What should be the nature of evidence 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 summoning of witnesses, etc. If permitted to do so, steps therefore, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant”. 9. Learned counsel appearing for the 1st respondent- complainant submits that the petitioner-accused filed application to drag on the proceedings having sought for time before the trial Court to settle the matter. Learned counsel placed on record certified copy of the docket proceedings before the trial Court in support of his contention. The docket proceedings dated 3.8.2010 and 17.8.2010 read as hereunder:- “3-8-2010: Both parties are present. Counsel for accused sought short time, stating that the accused is intending to settle the matter. As seen from the record, sufficient opportunity was given to the accused, even prior to the transfer of the case. However, in order to give one more opportunity of cost of Rs.200/- payable to Pw.1 the matter is posted to 17-8-2010. No further time will be granted. 17-8-2010: Both parties are present. Accused again sought time on the ground of settlement. But she has not paid costs. As seen from the docket, the matter has been coming up for cross of Pw.1 since 2-3-2010. Sufficient opportunity is given to the accused. In spite of conditional orders, accused sought time and has not complied the conditional order. Hence cross examination is treated as Nil and closed. Complainant evidence is closed. For examination of accused u/s 313 Cr.P.C call on 23-8-2010”. 10. As seen from the docket proceedings of the trial Court, the petitioner took number of adjournments on the ground of likelihood of the matter being settled out of Court. Even costs were imposed on the petitioner for her not proceeding with the cross-examination of Pw.1. She did not pay costs and thereby, cross-examination of Pw-1 came to be closed. The petitioner- accused moved Crl.M.P.No.6869 of 2010 under Section 45 of the Indian Evidence Act read with Section 293 Cr.P.C to send Ex.P-2 to expert for his opinion. 11. A copy of the deposition of Pw.1 has been made available during the course of hearing. The petitioner –accused cross- examined Pw-1 very extensively. The petitioner suggested to Pw.1 that he issued Exs.P-1 and P-2 to his father-in-law and that Exs.P-1 and P-2 have been misused by him. For better appreciation, I may refer the relevant portion of the cross- examination, which reads as hereunder:- “ Ex.P-1 is executed at Hyderabad. It is true that the contents of Ex.P-1 pro note are written in different language, different ink/pen that that of signature. The name of accused is Jameela Banu and not Bhanu. One Mhamood, Subramanyam and Srinivas signed on Ex.P- 1 at Hyderabad. They signed Ex.P-1 at Hyderabad as witnesses. I know the accused through my inlaws. It is not true to suggest that my in laws obtained blank pronote and blank cheque from the accused and fabricated the same on my name and filed this false case at Hyderabad to harass the accused who is resident of Guntur. It is true that Ex.P-1 the signature is as Jameela Banu…..” 12. The suggestion put to Pw.1 is sufficient to infer that the petitioner admits of his signatures appearing on Exs.P-1 and P- 2. The trial court has taken note of the suggestion put to Pw.1 to dismiss the application. There is no illegality or irregularity in the order impugned in the revision warranting interference of this Court in exercise of powers under Sections 397 and 401 Cr.P.C. 13. Accordingly, the Criminal Revision Case fails and the same is hereby dismissed at the admission stage. _____________________ B.SESHASAYANA REDDY, J Dt.21-01-2011 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Revision Case No.2221 of 2010 (Dated : 21-01-2011) [1] (2008)5 Supreme Court Cases 633