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Rajasthan High Court · body

2009 DIGILAW 1704 (RAJ)

Mahaveer Prasad Sarraf v. Devendra Kumar Sharma

2009-07-28

RAGHUVENDRA S.RATHORE

body2009
JUDGMENT : 1. - As agreed between both the parties, the matter was heard on the last date and it was kept for orders today. 2. The petitioner has filed this miscellaneous petition against the order dated 22.04.2009, whereby the learned Magistrate dismissed the application filed by him to send the cheques in question for examination by the Handwriting Expert at the Forensic Science Laboratory. Feeling aggrieved of the said order, the petitioner preferred a revision petition but without any success as the same was also dismissed on 19.05.2009. 3. The facts of the case, in nut-shell, are that non-petitioner No.1 had filed a complaint against the petitioner for the offence under Section 138 of the Negotiable Instruments Act. It was stated in the complaint that on 10.09.2004 petitioner borrowed Rs. 2,00,000/- from the complainant and for return of the same, he had given two cheques bearing No.875039 dated 24.08.2005 for a sum of Rs. 1,50,000/- and the second cheque bearing No.460407 dated 29.08.2005 for a sum of Rs. 50,000/-. Further, it was mentioned in the complaint that the said cheques were dishonoured. On filing of the complaint, the learned trial court took cognizance and summoned the petitioner. After appearance before the learned trial court, the petitioner filed an application on 10.09.2007 stating that cheque No.875309 had been stolen in the month of December, 2004 and an information in this regard was given to the Bank. It was also stated that the said cheque was blank but signed by the petitioner. It was also stated that as the cheque, except the signature, was not filled up by the petitioner so the same be sent for examination of the Handwriting Expert to find out as to who had made the entries in it. 4. The said application was contested by the respondent by way of filing a reply. He had prayed that the said application be dismissed. After hearing the parties, the learned Magistrate dismissed the application by the impugned order dated 22.04.2009. Being aggrieved of the said order, petitioner preferred a revision petition before the Sessions Judge, Bharatpur and that too was dismissed. 5. He had prayed that the said application be dismissed. After hearing the parties, the learned Magistrate dismissed the application by the impugned order dated 22.04.2009. Being aggrieved of the said order, petitioner preferred a revision petition before the Sessions Judge, Bharatpur and that too was dismissed. 5. I have heard the learned counsel for the parties and carefully perused the impugned orders passed by the learned courts below During the course of arguments, the learned counsel for the petitioner had placed before the Court for its perusal, photo stat copies of the aforesaid two cheques to show that they had been filled up by different persons, which is clear from the handwriting. The learned Magistrate had dismissed the application filed by the petitioner primarily on the ground that the said handwriting can be looked into by the Court itself under Section 73 of he Evidence Act. The learned Revisional Court dismissed the petition on he ground of maintainability holding that the order impugned passed by the learned Magistrate was an interlocutory order and, therefore, revision petition is barred by the provision of Section 397(2) Criminal Procedure Code. 6. The answer to the contention raised by the counsel for the respondent and the reasons for rejection given by the learned Magistrate, find place in the principle of law laid down by the Apex Court in the case of Kalyani Baskar v. M.S. Sampornam, 2007(1) Crimes 106 (SC) , wherein, in para 12, it had held as under : "Section 243(2) is clear that a Magistrate holding an Inquiry under the Criminal Procedure Code 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 handwriting 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 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 it is denied to her, there is no fair trial. 'Fair trial' includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defiance is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure, justice should be scrupulously followed, and courts should be jealous in seeing that there is no breach of them. We have not been able to appreciate the view of the learned Judge of the High Court that the petitioner has filed application under Section 243 Criminal Procedure Code without naming any person as witness or anything to be summoned, which are to be sent for handwriting expert for examination. As noticed above, Section 243(2) Criminal Procedure Code refers to a stage when the prosecution closes its evidence after examining the witnesses and the accused has entered upon his defense. The appellant in this case requests for sending the cheque, in question, for the opinion of the handwriting expert after the respondent has closed her evidence, the Magistrate should have granted such a request unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. In the circumstances, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable." In other words, the Apex Court has held in the aforesaid case that the accused was entitled to rebut the case of the respondent and the Magistrate by declining to send the document i.e. cheques for examination and opinion of the Handwriting Expert would deprive the accused of an opportunity to rebut the case. Further, it laid down that denial of that right amounted to denial of fair trial. Further, it laid down that denial of that right amounted to denial of fair trial. Even the question of comparison of the handwriting by the Magistrate himself has bean taken care of in the case of Kalyani Baskar (supra), wherein it has been held that if, in the interest of justice, he directs to send the document to be compared by a hand-writing expert then adopting such a course is for the purpose 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. Moreover, as mentioned above the cheques in question bears the handwriting of two different persons and, therefore, for this reason also it would be more appropriate and in the interest of justice that opinion of the Handwriting Expert be obtained in this matter. The principle laid down in the case of Kalyani Baskar (supra) has been reiterated by the Apex Court in the case of T. Nagappa v. Y.R. Murlidhar, (2008) 5 SCC 633 . 7. For the reasons mentioned above, I am of the view that this miscellaneous petition deserves to be allowed. The impugned orders dated 22.04.2009 and 19.05.2009 are hereby quashed and set aside. The application filed by the petitioner for sending the cheques in question for examination of the Handwriting Expert at the Forensic Science Laboratory stands allowed. The learned Magistrate may proceed accordingly.Petition allowed. *******