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TMI Blog2021 (4) TMI 1236X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016 affirmed the judgment of the learned trial court. Hence this Criminal Revision Petition. [2] Brief facts of the case are as under: Manik Debnath [PW-1] of Gokulpur, lodged a written complaint on 28/9/2012 in the court of the SDJM at Sabroom in South Tripura District, alleging, inter alia, that he used to supply coal to the brick kilns throughout the state. In the course of his business he entered into an oral agreement with accused Amiya Gopal Datta and Balaram Chowdhury for supplying 15.551 metric ton coal to 'MAA Bricks Society' at Rupaichari in South Tripura owned by the accused persons at a price of Rs. 1,20,000/-. Pursuant to the said contract PW-1 supplied 15.551 MT coal to the accused persons which was transported to their brick kilns in a truck carrying registration No TR-01-F-1702 on 21/01/2012 and the same was received by their manager Sattya Debnath and in return the accused persons jointly issued cheque No. 172757 dated 21/08/2012 of a sum of Rs. 1 lakh drawn on Tripura State Cooperative Bank Ltd. at its Manubazar branch. PW-1 presented the said cheque for encashment to said Tripura State Co-operative Bank Ltd. at its Manubazar branch on 21.08.2012. The cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt of the demand notice, acknowledgment card, cheque return memo, Advocate's notice etc. [5] After the recording of prosecution evidence was over, both accused were examined separately under Section 313 Cr.P.C. Both of them pleaded innocence and claimed that the charge was foisted on them. They declined to adduce any evidence on their defence, [6] It may be recalled that apart from examining himself as PW-1, complainant examined 2 other witnesses one of whom is his advocate and the other is the branch manager of Tripura State Cooperative Bank Ltd. of its Manubazar branch. During his examination in chief, the complainant reaffirmed that he supplied 15.551 MT coal worth Rs. 1,20,000/- to 'MAA Bricks Society' of the accused persons which was also received by their manager Sattay Debnath. Rs. 20,000/- was paid in cash to them and for rest of the amount, the accused persons jointly issued cheque of an amount of Rs. 1 lakh drawn on Tripura State Co-operative Bank. The complainant has taken the said cheque into evidence which has been marked as Exbt.3. Signatures of accused Amiya Gopal Datta and accused petitioner Balaram Chowdhury appearing on the cheque are marked as Exbt.3/1 and 3/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the impugned cheque were not signatures of accused Amiya Gopal Datta and Balaram Chowdhury. PW denied the suggestion. [11] In the course of their arguments, counsel appearing for the petitioner emphasised on the following points: i) No existing debt of the petitioner to the complainant was proved, because the complainant could not prove the delivery of the coal consignment to the brick kiln of the petitioner by adducing documentary evidence. ii) Complainant stated that his driver Abhijit Debbarma carried the coal consignment in his vehicle and Sattya Debnath, manager of the petitioner received such consignment in the brick kiln of the petitioner. Neither said Abhijit Debbarma nor Sattya Debnath was cited as a witness by the complainant. The courts below ignored this essential fact and erroneously found the petitioner guilty. iii) The petitioner submitted a written application before the trial court on 17.11.2015 requesting the court for sending the cheque in question for the opinion of hand writing expert with regard to the genuineness of his signature thereon which was arbitrarily rejected by the trial court. According to learned counsel of the petitioner, rejection of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused petitioner was insufficient. Learned Sessions Judge was also convinced about the genuineness of the case of the complainant because one of the convicts namely Amiya Gopal Datta already paid the fine without challenging the trial court's judgment and he nowhere stated that the present petitioner was not a co partner with him in 'MAA brick society' and he did not sign the impugned cheque as a partner of him. [15] It has surfaced on record that the petitioner along with Amiya Gopal Datta was partners of MAA brick society. Undisputedly they had monetary transaction with the complainant who had a business in supplying coal to the brick kilns across the state. In this connection the impugned cheque dated 21/08/2012 was jointly issued by the petitioner and his partner Balaram Chowdhury for discharging their existing joint liability to the respondent. The said cheque was drawn on Tripura State Cooperative Bank Ltd. at Manubazar branch where the petitioner and his partner had an account in the name of their farm and the said cheque got dishonoured due to insufficient fund in the account. [16] PW-3 has categorically stated that he compared the signature of the petitioner and that o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en proceed with the trial of the case in accordance with law. Vide paragraph 12 of the judgment, the Apex Court held as under: "12. Section 243 (2) is clear that a Magistrate holding an inquiry under the Cr.P.C. in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a hand-writing expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the hand-writing expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thers admitted or proved.- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written of made, any signature, writing or seal admitted or proved to t satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person." 37. This Section consists of two parts. While the first part provides for comparison of signature, finger impression, writing etc. allegedly written or made by a person with signature or writing etc. admitted or proved to the satisfaction of the Court to have been written by the same person, the second part empowers the Court to direct any person including an accused, present in Court, to give his specimen writing or finger prints for the purpose of enabling the Court to compare it with the writing or signature allegedly made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2015 disposed the petition holding that adequate opportunity was provided to the petitioner to rebut the case by adducing his own evidence and it would not be proper to turn back the clock without any justifiable ground. Section 243 Cr.P.C. provides that if the accused in a criminal trial who has entered upon his defence applies to the court 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 defeating the ends of justice. The court is required to record the reasons in writing while rejecting such application. Section 243 Cr.P.C. reads as under: "243. Evidence for defence. (1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record. (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- examinati ..... 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