2012 (4) TMI 810 - HC - Indian Laws

Appellate court limits expert witness in criminal case, emphasizes expeditious case disposal

The appellate court set aside the lower court's order allowing examination of a handwriting expert in a criminal case under section 482 Cr. P.C., ... Right to lead defence evidence of a handwriting expert - power of the Magistrate under Section 73 of the Evidence Act to compare signatures - non-maintainability of revision against an interlocutory order under Section 243(2) Cr.P.C. - vexatious and dilatory/abusive repetition of applications - probative value of bank memo indicating dishonour for 'insufficient funds'Non-maintainability of revision against an interlocutory order under Section 243(2) Cr.P.C. - vexatious and dilatory/abusive repetition of applications - Whether the Additional Sessions Judge was justified in entertaining and allowing revision against the Magistrate's interlocutory order dismissing the accused's application under section 243(2) Cr.P.C. - HELD THAT: - The Court found that the order passed under section 243(2) Cr.P.C. was interlocutory in nature and that the application before the Magistrate was, in substance, a review of earlier rejected applications filed by the accused for the same relief which were not disclosed to the Magistrate. The Magistrate had recorded that the accused had earlier filed two applications for examination by a handwriting expert which were dismissed as vexatious and delay causing and had imposed costs; those findings and the procedural posture rendered the subsequent application amenable to summary dismissal. The High Court therefore held that there was no infirmity or illegality in the Magistrate's order and that the ASJ erred in entertaining and setting aside that interlocutory order by revision. [Paras 6, 8, 11]The impugned revision order of the ASJ was set aside; the Magistrate's interlocutory order dated 11.07.2011 stood validated.Right to lead defence evidence of a handwriting expert - power of the Magistrate under Section 73 of the Evidence Act to compare signatures - probative value of bank memo indicating dishonour for 'insufficient funds' - Whether the accused was entitled, in the facts of this case, to have the cheque sent for examination by a handwriting expert at the stage of defence evidence. - HELD THAT: - While acknowledging the settled proposition that an accused may, in appropriate circumstances, lead expert handwriting evidence (as in Kalyani Baskar), the Court distinguished that authority on facts. Here, the Magistrate had himself compared the disputed signature with admitted signatures under his power in Section 73 of the Evidence Act and found no variance; the cheque had been returned by the bank with the endorsement 'insufficient funds' and the bank manager so testified. The accused had earlier filed and had two identical applications dismissed and had not confronted the bank manager about signature discrepancies. Given these circumstances and the finding of vexatious/dilatory conduct, the Magistrate reasonably declined the further application for expert examination; the ASJ's allowance of revision solely on the general right to lead expert evidence ignored the Magistrate's factual and procedural findings and was therefore unwarranted. [Paras 7, 8, 10]The accused was not entitled to the inspection/examination by a handwriting expert in the present circumstances; the Magistrate's refusal was sustained.Final Conclusion: The petition succeeds: the ASJ's order allowing revision is set aside and the Magistrate's order dated 11.07.2011 refusing the accused's application for handwriting expert examination is upheld, having been a permissible exercise of discretion given prior dismissals, findings under Section 73 and the bank's endorsement of dishonour for 'insufficient funds'. Issues involved:The judgment involves issues related to the admissibility of expert witness evidence in a criminal case under section 482 Cr. P.C., the right of the accused to produce expert witness in defense, the necessity of examination of a handwriting expert, and the interlocutory nature of certain orders leading to the revision petition.Details of the Judgment:Issue 1: Admissibility of expert witness evidenceThe petitioner filed a complaint under section 138 of the Negotiable Instruments Act, leading to the accused's statement under section 313 Cr. P.C. The accused sought examination of a handwriting expert under section 243(2) Cr. P.C. to disprove her involvement. The MM initially dismissed this application, leading to a revision petition before the ASJ, who allowed the examination of the expert witness.Issue 2: Right of the accused to produce expert witnessThe complainant challenged the ASJ's order, arguing that the accused had previously filed similar applications for expert examination which were dismissed. The complainant contended that the accused's right to examine a handwriting expert was not maintainable due to the prior rejections. The ASJ, however, granted the accused one opportunity for expert examination in her defense.Issue 3: Necessity of examination of handwriting expertThe complainant argued that the dishonored cheque was due to insufficient funds, not a difference in signatures. The complainant also highlighted that the Branch Manager confirmed the accused's signatures on the cheque. The complainant asserted that the examination of a handwriting expert was unnecessary as the MM had already compared the signatures and found no variance.Issue 4: Interlocutory nature of orders leading to revisionThe judgment emphasized that the accused had previously filed applications for expert examination, which were dismissed by the MM. The ASJ's order allowing the expert witness examination was deemed unwarranted, especially considering the specific directions for expeditious case disposal. The judgment concluded that the ASJ erred in entertaining the revision petition and set aside the order, disposing of the petition accordingly.