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A. Devaraj vs. rajammal on 1 february, 2011 author: g.m. Akbar ali bench: g.m. Akbar ali in the HC of judicature at madras dated: | |
1-2-2011 coram the honourable mr. J. g.m. Akbar ali crl.O.P. no.27211 of 2010 and m.p.nos.1 and 2 of 2010 a. Devaraj ..petitioner vs. rajammal | |
..respondent Crl. O.P. filed under S. 482 Cr.P.C. for the reliefs as stated therein. For petitioner : Mr. n. Sudharsan for | |
respondent : Mr. p. Ananda kumar order the petition is filed seeking a direction to set aside the order dated 10.11.2009 made in Crl. r.c.no.37/2008 | |
by the learned additional district and sessions judge, gopichettypalayam and confirming the order passed by the learned judicial magistrate, sathyamangalam in cmp no.3579 of 2007 | |
in c.c.no.595 of 2004 dated 2.5.2008. 2. Petitioner is the accused in c.c no.595 of 2004 pending on the file of judicial magistrate, sathyamangalam, erode. | |
The said proceedings was initiated on a Pvt. complaint lodged by the respondent for an offence under sec.138 r/w 142 of NI Act | |
(hereinaftera. Devaraj vs. rajammal on 1 february, 2011 | |
3. Pending proceedings, the petitioner has filed cmp no.3579 of 2007 under sec.45 of the indian evidence act seeking for an order to send the | |
cheque to the expert to determine the "age of the ink" found in the cheque. It was opposed by the complainant. The learned judicial magistrate | |
relied on a decision reported in 2008 (1) ctc 496 (s.gopal vs. p. Balachandran), wherein it is held that there is no scientific facility to | |
determine the age of the ink. Consequently, the learned magistrate dismissed the Appl. . 4. The petitioner has filed a revision petition in Crl. r.c.no.37 of | |
2008 before the learned additional district and sessions judge, gopichettipalayam. The learned additional district and sessions judge (fast track court ii), after considering the points, | |
concurred with the learned judicial magistrate and dismissed the revision. Aggrieved by which, the accused is before this court under sec.482 Cr.P.C. | |
5. Mr. n. Sudharsan, learned counsel for the petitioner drew our attention to an order passed by this court on 2.11.2010 in crp (pd) No. | |
1475 of 2010, wherein, his lordship r.S. ramanathan j. Observed as follows: "6. It is seen from the judgment referred supra, the learned judge after | |
getting opinion from the assistant director, document division, forensic science Dept. , Govt. of tamil nadu came to the conclusion that no such facility is available | |
in the forensic science Dept. , Govt. of tamil nadu and also on the basis of the opinion expressed by the assistant director held that the | |
age of the ink cannot be found out. Now the revision petitioner has produced a brochure downloaded from the central forensic science laboratories, hyderabad website | |
wherein it has been stated that they are undertaking the work of determining the age of the ink. Further, it is seen from the letter | |
written from the office of Govt. examiner of questioned documents directorate of forensic science, hyderabad, the age of the ink can be ascertained by comparing | |
it with the admitted signature of the same period and at the same time it has been stated that there is no foolproof method by | |
which the exact age of the writing/signature can be determined or authenticated. However, with a view to give fair trial to the revision petitioner and | |
having regard to the particulars available from the website of central forensic science laboratory, hyderabad, the prayer for the revision petitioner can be considered and | |
the document can be sent to central directorate of forensic science in the office of Govt. examiner of questioned documents. Further, the revision petitioner should | |
also send the admitted signature of the first defendant alleged to have been written during the relevant period during which the disputed document was also | |
signed. 6. He also relied on a decision reported in 2007 (1) crimes 106 (SC ), (kalyani baskar vs. m.S. sampornam), wherein the apex | |
court has held as follows: "where accused in a cheque bouncing Cas. prayed to magistrate to send cheque in question for examination by handwriting expert | |
to ascertain genuineness of signatures, as a fair trial request should have been allowed in exercise of power u/sa. Devaraj vs. rajammal on 1 february, | |
2011 | |
7. On the contrary, Mr. anandakumar, the learned counsel for the respondent submitted that the alleged transaction took place in the year 2004 and the | |
accused has chosen to file an Appl. only in the year 2007 and therefore, at the belated stage, the Appl. cannot be entertained and it | |
is only a delaying tactics by the accused petitioner. 8. The learned counsel relied on a decision reported in 2010 1 ctc 424 (r. Jagadeesan | |
vs. n. Ayyasamy and Anr. ) , wherein this court has held that finding the age of the writing in a document is only futile, since | |
the head of the Dept. of forensic science at chennai had stated that there is no scientific method available anywhere in this state to scientifically | |
assess the age of any writing. 9. Heard and perused the materials available on record. 10. The petitioner has invoked sec.45 of indian evidence act | |
contending that the cheque was not issued to the complainant but had been issued to the brother of the complainant during 1998 and 1999 and | |
to prove that the writings in the cheque do not belong to the year 2004 as dated in the cheque, the age of the ink | |
has to be determined. 11. The learned judicial magistrate as well as the revision Auth. had relied on the decision reported in 2008 (1) ctc | |
496 (s.gopal vs. p. Balachandran) (cited supra) and has also relied on a decision reported in 2010 1 ctc 424 (r. Jagadeesan vs. n. Ayyasamy | |
and Anr. ) (cited supra), wherein it is held that there is no facility available to determine the age of the ink. However, Anr. learned single | |
judge of this court has now held that the central forensic science laboratory at hyderabad has the facility to ascertain the age of the ink. | |
12. In my considered opinion, the latest judgment of the learned single judge of this court in crp (pd) no.1475 of 2010 is not a | |
contradictory judgment to the earlier judgment of the learned single judge in the Cas. of r. Jagadeesan vs. n. Ayyasamy and Anr. , reported in 2010 | |
(1) ctc 424. Hon'ble r.S. ramanathan j. Has differentiated the earlier judgment of Hon'ble S. nagamuthu j, and has ordered sending the document to be | |
examined by the cfsl, hyderabad as they claim the facility is available. 13. Since the learned magistrate has dismissed the Appl. based on the earlier | |
judgment, i am of the considered view that when there is facility available, a fair trial requires that a chance must be given to the | |
accused/petitioner as he has taken a definite stand that the cheque was issued to a different person in the year 1998-1999, which has been used | |
by the complainant in the year 2004. However, as observed in the order dated 2.11.2010 in crp (pd) no.1475 of 2010, an admitted signature of | |
the petitioner of the same year should also be sent for comparison. 14. Therefore, the Crl. O.P. is allowed and the order passed by | |
the learned additional district and sessions judge, gopichettypalayam in Crl. r.c.no.37/2008 dated 10.11.2009 and learned judicial magistrate, sathyamangalam in cmp no.3579 of 2007 in c.c.no.595 | |
of 2004a. Devaraj vs. rajammal on 1 february, 2011 | |
15. The revision petitioner is directed to submit his admitted signature as stated above within a period of two weeks from the date of receipt | |
of a copy of this order before the LC . The LC is directed to send both the documents to the central forensic science | |
laboratory, directorate of forensic science as stated above. The LC is directed to fix the remuneration to the Adv. commissioner and also for the | |
expenses for comparison. If the revision petitioner fails to produce the admitted signature for comparison as stated above within the stipulated period, the revision petitioner | |
is not entitled to ask for sending the documents for comparison. Consequently, the connected mps are closed. Sr to 1. Additional district and sessions judge, | |
gopichettypalayam 2. The judicial magistrate, sathyamangalama. Devaraj vs. rajammal on 1 february, 2011 | |
Bharathi rock products vs. gangambika enterprises on 10 march, 2023 kabc030972102021 presented on : 30-12-2021 registered on : 30-12-2021 decided on : 10-03-2023 duration : | |
1 years, 2 months, 11 days in the court of xxvii addl. Chief MM , bengaluru present: sri. H. Satish b.a.l. Ll.b., ll.m., xxvii a.c.m.m | |
bengaluru. Dated: this the 10 th day of march 2023. C.c. No.37392/2021 complainant bharathi rock products (india) pvt.ltd. (formerly mines and rock products (india Pvt. | |
ltd), no.24, old 56 b/34, 1st main, lower palace orchards, viyalikaval, bengaluru-560003. Rep.by AR , srivallabha .k.s., s/o. Late shamanna aged about 50 years. (by | |
sri. Jayaraj gowda. M.n. Adv. ) v/s. Accused 1. Gangambika enterprises situated at, gokul (village), basavakalyan, bidar 585327 representative by its authorized person, sri. Ravi reddy | |
s/o. Venkatareddy patil, major, 2. Sri. Ravi reddy, s/o. Venkatareddy patil, represented by its authorized person gangambika enterprises, situatedat No. gokul (village) basavakalyan,bharathi rock products | |
vs. gangambika enterprises on 10 march, 2023 | |
(by sri.samuel s dandin adv.,) u/s.138 of negotiable instruments offence act. 2 c.c. No. 37392/2021 plea of the accused claims to be tried final order | |
convicted judgment date 10/03/2023 **** judgment the complainant Co. has filed complaint u/sec.200 of Cr.P.C. against the accused for the offence punishable | |
u/sec.138 of negotiable instrument act. 2. The facts germane for disposal of the instant complaint can be summarized as per following:- it is the Cas. | |
of the complainant Co. that, the complainant Co. was formerly known as mines and rock products (india pvt ltd.,) and it is engaged in the | |
business of supply of mines and rock products and the accused no.1 is engaged in the similar type of business and the accused No. 2 | |
being the owner of the accused no.1 concern used to purchase material sand, p-sand, jelly and coarse products with the complainant Co. as and when | |
required and as per the books of account, the accused has purchased coarse products on various dates from 01/09/2018 and stated that as per the | |
books of accounts maintained by the complainant Co. as on 01/09/2018, the accused was due to the complainant Co. to the tune of rs.48,205/- and | |
the accused failed to repay the said amount despite repeated request. 3. It is stated that, after persistent request and demand, towards discharge of outstanding | |
liability due and payable, the accused issued cheque bearing no.000005 dated 20/11/2018 for a sum of rs.48,205/- drawn on hdfc bank, no.55 a, sadahalli village, | |
devanahalli taluk, bengaluru in favour of the complainant Co. and assured that the same would be honoured on its presentation and the complainant Co. presented | |
the said cheque on 20/11/2018 for encashment through its banker i.e., axis bank, sadhashiva nagar branch, bengaluru and the same got dishonoured and returned with | |
an endorsement dated:23/11/2018 stating " funds insufficient " . Thereafter, the complainant Co. got issued demand notice dated: 15/12/2018 to the accused through rpad calling | |
upon him to make the payment covered under the aforesaid cheque, within 15 days from the date of receipt of notice and the said notice | |
was returnedbharathi rock products vs. gangambika enterprises on 10 march, 2023 | |
Hence, this complaint. 4. It is to be noted that, there was a delay in filing the complaint and this court vide order dated: 04/12/2021 | |
condoned the delay in filing the complaint. Thereafter, the sworn statement of the AR of the complainant Co. by name srivallabha. K.s was recorded. | |
As the complainant had complied the mandatory requirements of S. 138 of negotiable instrument act, the court issued summons to the accused. After service of | |
summons, accused entered appearance and was enlarged on bail. 5. The plea of the accused was recorded and the substance of the accusation was read | |
over to the accused in the language known to him and the same was explained, to which, accused pleaded not guilty and submitted he has | |
defence to make. 6. In order to prove the Cas. , the AR of the complainant Co. by name srivallabha. K.s got himself examined as | |
pw.1 and got marked ex.p1 to ex.p13 documents. 7. The statement of accused under S. 313 Cr.P.C. was recorded and the accused | |
denied the incriminating evidence appearing against him. The accused has not let in his side oral evidence and no documents are marked on his behalf. | |
8. Heard arguments on both sides. I have perused the materials on record. 9. The following points arise for my determination: (i) whether the complainant | |
Co. proves that towards discharge of liability due and payable, the accused issued cheque bearing no.000005, for Rs. 48,205/- drawn on hdfc bank, no.55, sadahalli | |
village, devanahalli taluk, bengaluru in favour of complainant Co. ? (ii) whether the complainant Co. proves that accused has committed an offence punishable u/sec.138 of | |
negotiable instrument act? (iii) what order? 10. My answer to the above points is as per following:- point no.1& 2 : in the affirmative point | |
no.3 : as per the final order, for the following:-bharathi rock products vs. gangambika enterprises on 10 march, 2023 | |
11. Point nos.1 & 2 : in order to prove the Cas. , the AR of the complainant Co. by name sri. Srivallabha. K.s got | |
himself examined as pw.1 and the Aff. filed by him in lieu of sworn statement was treated as examination in chief as per the dictum | |
laid down in the ruling of the Hon'ble apex court of india, reported in (2014) 5 scc 590 (indian bank Assn. & ors v/s. Union | |
of india & ors). Pw1 got marked ex.p1 to p13 documents. 12. The complainant Co. has exhibited the following ex.p1 to p13 documents. Ex.p1 is | |
the certified copy of board resolution, ex.p2 is the statement of account, ex.p3 is the cheque dated: 20/11/2018, ex.p3(a) is the signature of accused, ex.p4 | |
is the bank endorsement dt:23/11/2018, ex.p5 is the office copy of legal notice dated : 15/12/2018, ex.p6 & 7 are the postal receipts, ex.p8 & | |
9 are postal covers, ex.p10 & 11 are the invoices and ex.p12 & 13 are the bills. 13. The learned counsel for the complainant vehemently |
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