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2016 DIGILAW 698 (HP)

Raj Kumar v. Ram Krishan & Sons

2016-05-06

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. This petition under Section 482 Cr.P.C. read with Article 227 of the Constitution seeks quashing and setting aside of the order passed by the learned Judicial Magistrate Ist Class, Chamba, District Chamba, on 19.06.2015 whereby he dismissed the application filed by the petitioner under Section 45 of the Indian Evidence Act (for short ‘Evidence Act’) for comparison of handwriting by the Handwriting Expert. 2. The Minimal facts as are necessary for the determination of this case are that the respondent filed a complaint against the petitioner under Section 138 of the Negotiable Instruments Act (for short the ‘Act’) claiming dishonour of cheque of value of Rs. 2,25,000/-, whereas, the stand of the petitioner was that he in order to maintain the relations and further in order to repose confidence had issued five cheques of Rs. 25,000/- each to the respondent as security. It was further claimed that apart from the defence already taken, the respondent otherwise had interpolated the amount in the cheques and in place of Rs. 25,000/- he had pre-fixed two and thereby converted the amount to Rs. 2,25,000/-. 3. During the course of proceedings, the petitioner filed an application under Section 45 of the Evidence Act for comparison of handwriting of the applicant-accused by Handwriting Expert. This application came to be rejected by the learned trial Magistrate by according the following reasons:- “4. It may be observed at the outset that the applicant- accused himself admitted his signatures over the cheque. However, he has claimed that he had filled-up the cheque partially only by writing the amount of Rs.25,000/- in digits. However, the rest of the particulars of the cheque were left blank. In this regard, it may be observed that Section 20 of the Negotiable Instruments Act provides as under:- “20. Inchoate stamped instruments. - Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in [India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.” 5. Therefore, in the present case, when the applicant-accused himself claimed that he had partially filled up the cheque, he thereby gave an implied authority to the complainant to complete the other particulars of the cheque. Therefore, no fruitful purpose shall be served by seeking opinion of the handwriting expert in respect of the writings on the cheque by comparing it with the handwriting of the applicant-accused. When the applicant-accused has admitted his signatures over the cheque and admittedly the cheque i.e. negotiable instrument comes within the category of inchoate stamped instruments under Section 20 of the Negotiable Instrument Act, it would not make any difference if the other particulars of the cheque had been filled up by the complainant, or somebody else.” 4. It is against the aforesaid impugned order that the present petition has been filed on the ground that the order passed by the learned Magistrate is absolutely illegal and, therefore, is not maintainable in the eyes of law. I have heard the learned counsel for the parties and gone through the records of the case. 5. I am at a complete loss to understand as to on what basis the learned Magistrate applied Section 20 of the Act. Section 20 speaks about a stamped, incomplete, inchoate instrument delivered to any person with prima facie authority to complete the instrument and encash the same. The learned Lahore High Court in A.R. Dower versus Sohan Lal AIR 1937 (Lah) 816 held that Section 20 relating to the encashability of the inchoate stamped instrument will not apply to the cheque as it does not require stamp. 6. Following the aforesaid ratio, a Division Bench of the learned Kerala High Court in C.T. Joseph versus I.V.Philip AIR 2001 (Ker) 300 has observed that Section 20 of the Negotiable Instruments Act will not apply to the cheque as the same does not require any stamp under the Stamp Act and the aforesaid provision would apply to other incomplete, inchoate instruments which require stamp under the Stamp Act. 7. 7. The learned Madras High Court in S. Gopal versus D. Balachandran 2008 1 CTC 491 held that bare reading of Section 20 of the Negotiable Instruments Act would go to show that it would apply only to stamped instrument viz. pronote and bill of exchange and not to cheques. Therefore, Section 20 will have no application to the cheques issued after signing by the drawer. 8. That apart, it was only if the Magistrate was of the opinion that the object of the petitioner in moving the application for comparison of the signatures was vexatious and had no relevance in the proceedings could he have refused the permission. But, once this was not the case, then I see no reason why the learned Magistrate ought not to have sent the documents for examination enabling the same to be compared by the Handwriting Expert which would facilitate in arriving at a correct decision. 9. The petitioner cannot be convicted without an opportunity of being given a fair chance to present his evidence and if it is denied then there would be no “fair trial”. After-all “fair trial” includes fair and proper opportunities allowed by law to prove the parties innocence. Adducing evidence in support of the defence is a valuable right. This was precisely what was held by the Hon’ble Supreme Court in Kalyani Baskar versus M.S. Sampoornam (2007) 2 SCC 258 which reads thus:- “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 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 defence 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 Cr.P.C. 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) Cr.P.C. refers to a stage when the prosecution closes its evidence after examining the witnesses and the accused has entered upon his defence. The appellant in this case requests for sending the cheque, in question, for the opinion of the hand-writing 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.” 10. Having said so, the order passed by the learned Magistrate is not sustainable in the eyes of law and is accordingly set aside. Consequently, the application filed by the petitioner is allowed and the cheque in question is directed to be sent for comparison of the handwriting by the Handwriting Expert to be appointed by the learned trial Magistrate. 11. The petition is allowed in the aforesaid terms. Interim order dated 14.08.2015 stands vacated. The pending application, if any, also stands disposed of.