JUDGMENT : [1] Petitioner Balaram Chowdhury was convicted for commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1981 and sentenced to pay a fine of Rs.1 lakh with default stipulation by the Judicial Magistrate First Class Sabroom in case No CR 499 of 2012 (NI) by judgment and order dated 19/01/16 along with Amiya Gopal Datta who was also convicted for the same offence and sentenced to pay the same amount of fine. Pursuant to the judgment of the trial court said Amiya Gopal Datta has already paid the fine whereas petitioner Balaram Chowdhury preferred criminal appeal No.8 of 2016 in the court of Sessions Judge in South Tripura at Belonia challenging the judgment of the trial court. The appellate court vide judgment dated 09.08.2018 in Criminal Appeal No 8 of 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 was dishonoured for insufficiency of fund in the account of the accused persons and the same was returned to PW-1 on the same day. PW-1 informed the matter to both the accused and requested them for payment of the money. The money was not paid to PW-1 by the petitioner and co accused Amiya Gopal Datta. The cheque was dishonoured for insufficiency of fund in the account of the accused persons and the same was returned to PW-1 on the same day. PW-1 informed the matter to both the accused and requested them for payment of the money. The money was not paid to PW-1 by the petitioner and co accused Amiya Gopal Datta. PW-1 then issued statutory notice to the accused persons demanding payment of the money within 30 days from the date of receipt of such notice. Said notice was duly-Section received by them. Even thereafter, they did not pay his money. PW-1 Manik Debnath, therefore, filed a complaint under Section 138, NI Act against the petitioner and accused Amiya Gopal Datta. [3] The trial court took cognizance of offence punishable under Section 138 of the NI Act on the basis of the said complaint lodged by Sri Manik Debnath [PW-1] and summoned the accused persons to appear before the court. When the accused persons appeared before trial court, learned trial judge stated the particulars of the offence to them in terms of Section 251 Cr.P.C. which is as under: “That both of you on 21.08.2012 in discharge of your liability issued a Cheque of Rs.1,00,000/-(Rupees one lakh)drawn on Tripura State Co-operative Bank Ltd., Manubazar Branch in favour of the complainant Sri Manik Debnath from your CD Account No.292 maintained in the name of ‘MAA Bricks Society’, Rupaichari of which both of you are the owners. That the said cheque issued by you was dishonoured by your bank on account of insufficiency of fund in the account maintained by you, by their cheque return memo dated 21.08.2012. Thereafter, you also failed to make payment of the said cheque amount to the complainant within the prescribed period even after receipt of due demand notice from the complainant. And therefore, both of you have committed offence punishable under section 138 of the Negotiable Instrument Act, 18 and within my cognizance.” Both accused pleaded not guilty and claimed trial. [4] During trial complainant Manik Denath examined himself as PW-1, his Advocate Sri Sapan Das as PW-2 and the branch manager of Tripura State Cooperative Bank Ltd. of Manubazar branch PW-3. Besides adducing the oral evidence of the said PWs, the complainant produced 6 documents which were admitted into evidence and marked as Exbt.1 - Exbt.6/1. [4] During trial complainant Manik Denath examined himself as PW-1, his Advocate Sri Sapan Das as PW-2 and the branch manager of Tripura State Cooperative Bank Ltd. of Manubazar branch PW-3. Besides adducing the oral evidence of the said PWs, the complainant produced 6 documents which were admitted into evidence and marked as Exbt.1 - Exbt.6/1. Such documents include the original cheque issued by the accused persons, postal receipt 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 respectively. It has also been stated by the complainant that vide return memo [Exbt.6] the cheque was returned by Tripura State Co-operative Bank after it was presented to the said bank by the complainant[PW-1]. It has also been indicated in the said return memo that the cheque was returned, for insufficiency of fund. After the cheque was returned the complainant initially informed the said fact to the accused persons and having found them reluctant in making the re-payment, he served demand notice to the accused persons which was sent to their address by registered post with AD. Said demand notice issued by the complainant has been marked as Exbt.4. [7] Cross examination of PW-1 is very relevant. Accused petitioner denied the whole case through the cross examination of PW-1. Said demand notice issued by the complainant has been marked as Exbt.4. [7] Cross examination of PW-1 is very relevant. Accused petitioner denied the whole case through the cross examination of PW-1. It was suggested to the PW on behalf of the accused petitioner that said cheque of 01 lakh was never issued and sum of Rs.20,000/- in cash was not also paid by the petitioner to the PW. The PW denied both of these suggestions. PW was also made to say that he submitted no documentary evidence to prove supply of coal to their brick kiln. [8] In his brief statements PW-2 Sapan Das who is an advocate by profession stated that he issued demand notice [Exbt.6] on behalf of the complainant to accused Balaram Chowdhury and Amiya Gopal Datta. There was no cross examination of the PW-2 on behalf of the accused persons. [9] PW-3, Jambahadur Reang stated that he was posted as the branch manager of the Tripura State Cooperative Bank at its Manubazar branch at the relevant time. On 21.08.2012, he received cheque bearing No.172757 issued in favour of complainant Manik Debnath [PW-1] by accused Amiya Gopal Datta and Balaram Chowdhury who were having CD account No 292 in the bank in the name of ‘MAA Bricks Industries’. The PW being the branch manager compared the signatures of the accused persons with their signatures appearing in the records of the bank. Having been satisfied about the genuineness of their signatures, the branch manager checked their account and found that fund available in their account was insufficient. As a result, the said cheque was bounced. The PW then issued return memo [Exbt.6] and the original cheque [Exbt.3] was also returned along with the said return memo. [10] During his cross examination it was suggested to the PW on behalf of the accused that signatures appearing on 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. 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 his petition has amounted to denial of opportunity to present his evidence before the court which is an essential element of fair trial. According to learned counsel the accused deserves acquittal on this ground alone. In support of his contention, he has relied on the decision of the Apex Court in KALYANI BASKAR (Mrs) vs. M.S.SAMPOORNAM(Mrs) reported in (2007) 2 SCC 258 . [12] Further submission of Mr. D.K.Daschoudhury, learned counsel is that when there are 02 views possible then the view which favours the accused should always be adopted. It is submitted by learned counsel that the prosecution has not been able to prove the case against the accused beyond reasonable shadow of doubt and therefore, the courts should have given the benefit of doubt to the petitioner. In support of his contention Mr. Daschowdhury has relied on the decision of the Apex Court in AJIT SAVANT MAJAGVAI VS. STATE OF KARNATAKA reported in (1997) 7 SCC 110 . On the terms aforesaid, learned counsel has urged the court for acquittal of the petitioner. [13] Ms. In support of his contention Mr. Daschowdhury has relied on the decision of the Apex Court in AJIT SAVANT MAJAGVAI VS. STATE OF KARNATAKA reported in (1997) 7 SCC 110 . On the terms aforesaid, learned counsel has urged the court for acquittal of the petitioner. [13] Ms. S.Chakraborty, learned advocate appearing for the respondent on the other hand has argued that whereas one of the convicts who jointly signed the impugned cheque with the petitioner has paid the fine, pursuant to his conviction and sentence without disputing his signature on the cheque, the present petition filed by the other convict is liable to be dismissed. Further submission of Mr.S.Chakraborty, learned counsel of the respondent is that there is no reason to interfere with the concurrent findings of the courts below. Learned counsel, therefore, urges for dismissal of the revision petition. [14] The impugned judgment of the learned Sessions Judge demonstrates that he compared the disputed signature of the petitioner appearing on the impugned cheque[Exbt.3] with his signature appearing on his statement recorded under Section 313 Cr.P.C. in exercise of his power provided under Section 73 of the Indian Evidence Act and found that both the signatures were same. In the impugned judgment, learned Sessions Judge also relied on the statement of PW-3, branch manager of Tripura State Cooperative Bank Ltd. who stated that disputed signature of the petitioner was compared by him with the records maintained in bank after the cheque was presented in his bank for encashment and returned the said cheque since fund in the account of the 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. [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 of his partner appearing on the cheque with their specimen signatures preserved in the bank and he was satisfied about the genuineness of the signatures. But the cheque was dishonoured because of insufficient fund in their account. In cross examination, evidence of PW-3 could not be demolished. [17] As discussed, counsel appearing for the petitioner has relied on the decision of the Apex Court in the case of Kalyani Baskar [MRS](supra) to establish his contention that accused petitioner was denied of a fair trial by the rejection of his petition for sending the impugned cheque to hand writing expert for examination. [18] As contended by the petitioner he filed a petition at the trial court making a prayer before the court for sending the questioned cheque [Exbt.3] for the opinion of hand writing expert which was rejected by the trial court. It appears from the lower court record that after the case was posted for argument on 17/11/2015, the present petitioner along with co accused Amiya Gopal Datta, jointly filed a petition at the trial court on 17/11/2015 requesting the court to send their specimen signatures received from their bank along with the impugned cheque to the hand writing expert for examination and expert opinion. By a detailed order dated 26/11/2015, the trial court rejected the said petition by observing as under: “The OP has been provided adequate chance to rebut the evidence of the petitioner by adducing his own evidence and the matter is fixed for argument and under the circumstances it would not be proper to turn back the clock without any justifiable ground since, the judgment would be prepared considering the entire evidence on record. In view of the same the payer is rejected.” [19] In the case of Kalyani Baskar[Mrs](supra) in which the appellant and her husband jointly signed and issued the cheque for discharging their liability which was dishonoured by bank for insufficient fund in their accounts, the appellant disputed her signature on the said cheque and made a prayer to the trial court for referring the document to hand writing expert under the provision of Section 243(2)Cr.P.C which was rejected by courts in succession. The Apex Court allowed the appeal directing the trial court to take appropriate steps for obtaining report from the hand writing expert on the point whether signature on the cheque is that of the accused and then 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 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.” [20] Having placed reliance on decision of the Apex Court in Ajit Savant Majagvai vs. State of Karnataka reported in (1997) 7 SCC 110 , counsel of the petitioners argued that it has been held by the Supreme Court that in the event of slightest doubt, the court should leave the matter to the wisdom of experts. According to learned counsel, since the petitioner disputed his signature and created doubts in the mind of the court about the authenticity of the signature on the impugned cheque, the courts should have sent the said cheque to the hand writing expert for comparing the disputed signature. According to learned counsel, since the petitioner disputed his signature and created doubts in the mind of the court about the authenticity of the signature on the impugned cheque, the courts should have sent the said cheque to the hand writing expert for comparing the disputed signature. In the said judgment the Apex Court has held as under: “36...................................................................................... A mere look at the signatures was enough to indicate the similarity which was so apparent that it required no expert evidence. This comparison was done by us having regard to the provisions of Section 73 of the Evidence Act which provides as under:- “73. Comparison of signature, writing or seal with others 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 that person. The Section does not specify by whom the comparison shall made. However, looking to the other provision of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself. 38. The Section does not specify by whom the comparison shall made. However, looking to the other provision of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself. 38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature of handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not power to compare the disputed signature with admitted signature as this power is clearly available under Section 73 of the Act.” [21] The impugned judgment of the Sessions Judge would demonstrate that in the given facts and circumstances of the case, the learned Sessions Judge in exercise of his power under Section 73 of the Evidence Act compared the signature of the petitioner appearing on the disputed cheque [Exbt.3] with his signature appearing on his statement recorded under Section 313 Cr.P.C. and came to the conclusion that petitioner jointly signed the disputed cheque as one of the partners of MAA brick society with convict Amiya Gopal Datta. While doing so, the Sessions Judge also observed in his judgment that another partner of the petitioner namely Amiya Gopal Datta who was also convicted and sentenced along with the petitioner did not challenge his conviction and sentence and he had already paid the fine in terms of the sentence. [22] Learned counsel appearing for the petitioner has emphasised on the rejection of the petition dated 17/11/2015 of the petitioner declining to send the impugned cheque [Exbt.3] to hand writing expert for comparison of the disputed signature of the petitioner which according to learned counsel of the petitioner amounted to denial of the fair trial to the petitioner and in view of the decision of the trial court in the case of Kalyani Baskar[MRS](supra) and argued that the present petition should be allowed on this ground. [23] In the instant case, petitioner filed the said petition dated 17/11/2015 in the trial court after the petitioner was examined under Section 313 Cr.P.C. and the case was listed for arguments. [23] In the instant case, petitioner filed the said petition dated 17/11/2015 in the trial court after the petitioner was examined under Section 313 Cr.P.C. and the case was listed for arguments. The trial court vide order dated 26/11/2015 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- 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 for defeating the ends of justice and such ground shall be recorded by him in writing: Provided that, when the accused has cross- examined or had the opportunity of cross- examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice. (3) The Magistrate may, before summoning any witness on an application under sub- section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court. (3) The Magistrate may, before summoning any witness on an application under sub- section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court. B.- Cases instituted otherwise than on police report” [24] Admittedly the petitioners were jointly carrying on partnership business of manufacturing and selling of bricks in the name of “MAA Brick Society” and they used to operate the accounts of their company in their joint names. It has been proved beyond doubt that the complainant supplied coal to them for which they had an existing liability to the complainant and in the discharge of such liability the petitioners jointly issued the impugned cheque to the complainant which was later dishonoured for insufficiency of fund. The courts below have returned the findings of guilt of the petitioners on proper appreciation of evidence and held the petitioners guilty and sentenced them appropriately. There is no infirmity in their judgments. As a result, the revision petition stands dismissed. [25] Petitioner Balaram Chowdhury is directed to pay the fine in terms of the impugned Judgment within a period of three months which on realization be paid to the complainant as compensation. [26] If the petitioner approaches the trial court to allow him instalments for paying the fine, maximum 4(four) instalments may be allowed to him by the trial court for making the payment within the said period of 3 months. Else he will suffer the default sentence. [27] In terms of the above, the criminal revision petition stands disposed of. Pending application(s), if any, also stands disposed of.