LALJEE PANDEY Vs. STATE OF U.P.

JUDGEMENT

(1.) The revisionist has filed one complaint in which two witnesses, namely, Prem Chandra and Jata Shanker were examined under Sec. 200 Criminal Procedure Code. The case was dismissed in default in absence of the complainant and thereafter the said two witnesses lodged a complaint that they did not depose in that proceeding and some fake persons appeared in the Court bearing their names and the signatures made in the deposition were not done by them. Accordingly an inquiry under Sec. 340 Criminal Procedure Code was conducted and complaint was filed before the court of the learned Chief Judicial Magistrate. The learned Magistrate after examining them issued process. Against that order the complainant filed an appeal before the learned Sessions Judge, Jaunpur, which was dismissed. Being aggrieved by the said judgement and order this revision has been filed.

(2.) Learned counsel has submitted that while conducting the inquiry under Sec. 340 Criminal Procedure Code the Magistrate should have taken the opinion of the hand writing expert to establish the allegation against the complainant (revisionist before me) and without which mere denial by the witnesses would not be sufficient to launch prosecution against the complainant of the said case under Sections 193/195/200/205, Indian Penal Code. It has been contended that the learned Additional Chief Judicial Magistrate also committed the same error while considering prima facie case and before issuing process against the revisionist. Learned Sessions Judge also did not call for the record, which according to the learned counsel for the revisionist is untraced, decided the matter on the report of the inquiring Magistrate, which is not proper. it appears that the learned Sessions Judge has rightly held that presence of the persons against whom the complaint was made was not necessary. But I find that the plea taken by the revisionist at this stage was neither raised before the Additional Chief Judicial Magistrate, Jaunpur nor before the learned Sessions Judge in appeal. Nothing has been produced before this Court in this respect. So a question arises whether at this stage the revisionist is allowed to raise such point which was not done earlier. It is true that for coming to a definite conclusion it is necessary to obtain the opinion of the hand writing expert. In that respect I do not find that mere denial of these two persons, namely, Prem Chandra and Jata Shanker was enough. So for the ends of justice it is necessary that examination of the hand writing and/or signature are required in this case for the purposes of unveiling the truth. Though the matter is an old one but the said process has to be adopted in coming to a definite conclusion whether or not those two witnesses appeared and deposed in favour of the complainant. It has been submitted that the original record of the case, in which deposition of the two witnesses were taken, has been lost. But if the deposition of the witnesses are not available to find out their signatures on the deposition it would not be possible to call for hand writing expert to tally with those signatures.

(3.) When the revisionist has not taken the plea before the learned Magistrate or before the learned Sessions Judge it is necessary that he should file an application before the learned Magistrate where the case is pending and if he does so the learned Magistrate will find out the original signatures on the deposition made by the two witnesses and if available he will refer the matter to hand writing expert for comparison of the signatures with the present one taken in court in presence of the learned Magistrate and obtain opinion from him. Learned counsel for the revisionist has agreed to bear the costs of the hand writing expert. To facilitate the said procedure it is necessary to set aside the order of the learned Additional Chief Judicial Magistrate dated 5.12.1983 and the order of the learned Sessions Judge dated 29.6.1994.