NAJUMA Vs. SUDHEER

JUDGEMENT

(1.) The revision petitioner is the complainant in C.M.P. No. 65/2009 on the files of the Judicial First Class Magistrate Court, Kodungallur. She filed the complaint against the 1st respondent alleging offences punishable under S. 468, 323, 448 read with 34 I.P.C. Case of the complainant is that the 1st respondent is her brother and she is not in good terms with her brother and there are cases between them. The 1st respondent, who is the first accused, along with his power of attorney A2 had instituted a suit against the revision petitioner before the Sub Court, Irinjalakkuda alleging that she had borrowed Rs. 14 lakhs from the 1st respondent and executed a promissory note. When she enquired about the same, it is revealed that the signature and handwriting in the promissory note are not her handwriting and signature. The accused have prepared the said promissory note with an intention to cheat her and also making hardship to her. According to her, she has not handed over any such promissory note to the accused and there was no financial transaction with the first accused. The complaint was numbered as C.M.P. No. 65/2009 and sworn statement of the complainant was also recorded. The disputed document was sent for expert opinion to the Forensic Science Laboratory, Thiruvananthapuram. The disputed promissory note and the specimen signature of the revision petitioner were analysed by the Assistant Director of Forensic Science Laboratory, Thiruvananthapuram and he sent a report which is marked as Ext. C1. In Ext. C1, it is clearly reported by the Assistant Director of Forensic Science Laboratory that "It has not been possible to arrive at any conclusion regarding the authorship of the signature compared by her." On receipt of the expert opinion, the learned Magistrate dismissed the complaint on a finding that the revision petitioner has failed to establish a prima facie case so as to presume against the accused for the offence alleged against them in the complaint.

(2.) The learned counsel for the revision petitioner submits that the learned Magistrate went wrong by relying on the expert opinion only, when other methods are also available under the Indian Evidence Act for examining a disputed handwriting. But, without resorting to those remedies, the learned Magistrate has jumped into a conclusion that the revision petitioner failed to prove the offence. Per contra, the learned counsel for the 1st respondent submits that the scope of interference on an order passed under S. 203 of the Code of Criminal Procedure is very limited. The learned counsel drew my attention to the decision reported in Pramatha Nath v. Saroj Ranjan, 1962 AIR(SC) 876. Going by the decision it is seen that the principle which is laid down by the Court in that decision is as follows:

(3.) On an analysis of the facts involved in this case, in the light of the decision referred above, I am of the opinion that the facts of this case and the reason for dismissal of the complaint would not come under the application of the decision referred above. The case which was referred in that case is a case wherein entire evidence was taken after examining all witnesses and thereafter arrived at conclusion that there is no ground to proceed with the complaint. But here, merely on the basis of the report of the expert, without examining any other witnesses, the court arrived at a conclusion that the complainant failed to prove the allegation in the complaint. Therefore, I am of the opinion that the decision cited by the 1st respondent will not give any assistance or improvement to the case of the 1st respondent. Going by the Indian Evidence Act, there are certain other methods to examine the disputed signature. The court itself is competent to compare the signature and arrive at an opinion under S. 73 of the Indian Evidence Act. Similarly S. 47 of the said Act provides another method of examination. But the learned Magistrate has not given opportunity to the petitioner to resort to such remedies available under the Indian Evidence Act. The expert opinion is neither a conclusive proof nor a last resort to prove a disputed signature. In short, expert opinion is not an end of the road to prove the handwriting. The learned Magistrate ought to have granted sufficient opportunities to the revision petitioner to prove the disputed signature by resorting to other remedies and also examining the witnesses acquainted with facts and circumstances of the case. Consequently, the impugned order under challenge is unsustainable and liable to be set aside.