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Himachal Pradesh High Court · body

2023 DIGILAW 493 (HP)

Saroj Kumari v. Harminder

2023-12-05

RAKESH KAINTHLA

body2023
JUDGMENT : RAKESH KAINTHLA, J. 1. The present petition is directed against the order passed by the learned Chief Judicial Magistrate, Shimla, dated 24.1.2023, vide which the application filed by the petitioner under Section 45 read with Section 73 of the Indian Evidence Act for seeking the expert opinion of Handwriting Expert by comparing the signatures of the applicant with the disputed signatures was dismissed. 2. It has been asserted that the respondent filed a complaint under Section 138 of the Negotiable Instruments Act against the petitioner in the year 2016. The petitioner/accused disputed her signatures on the cheque in the cross-examination of the respondent/ complainant. The petitioner had lost the chequebook in May, 2017. She informed the Bank on 16.5.2017. The petitioner filed an application under Section 45 read with Section 73 of the Indian Evidence for comparing the signatures on the cheque with the signatures on Power of Attorney and the specimen signatures. The application was dismissed by the Court on 24.1.2023 on the ground that the cheque was not dishonoured on the ground that the drawer's signatures differ. It is asserted that the learned Court below misconstrued the provision of law. There was no evidence that the petitioner had signed the cheque. The application could not have been dismissed on the ground that the cheque was not dishonoured on the ground that the drawer’s signature differs. The opinion of the expert was necessary to establish the defence. Therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 3. I have heard Mr. R.L. Thakur, learned Counsel for the petitioner/accused and Mr. Vikram Thakur, learned counsel for the respondent/complainant. 4. Mr. R.L. Thakur, learned Counsel for the petitioner/accused submitted that the learned Trial Court erred in dismissing the application on the ground that the cheque was not dishonoured on the ground that the drawer’s signatures differ. The petitioner has disputed her signatures on the cheque from the beginning. She had cross-examined the respondent/complainant regarding this fact. She had also made a complaint to the bank regarding the loss of the chequebook. Learned Trial Court erred in dismissing the application on the ground that the cheque was not dishonoured due to a difference in signatures. The petitioner could not have been held liable when she had not signed the cheque. She had also made a complaint to the bank regarding the loss of the chequebook. Learned Trial Court erred in dismissing the application on the ground that the cheque was not dishonoured due to a difference in signatures. The petitioner could not have been held liable when she had not signed the cheque. The petitioner is entitled to take recourse to expert evidence to establish her innocence and learned Trial Court erred in dismissing the application. Therefore, learned counsel for the petitioner prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 5. Mr. Vikram Thakur, learned counsel for the respondent/complainant supported the order passed by the learned Trial Court and submitted that no interference is required with the same. 6. I have given considerable thought to the rival submissions at the bar and have gone through the record carefully. 7. The Learned Trial Court dismissed the application solely on the ground that the cheque was not dishonoured on the ground drawer’s signature differs. Learned Trial Court failed to appreciate that if the cheque was dishonoured on the ground that the drawer’s signature differs, the complaint would not have been filed under Section 138 of the NI Act and there was no need for the complainant to file an application under Section 45 read with Section 73 of the Indian Evidence Act for comparison of signatures. The accused disputed her signatures on the cheque and claimed that she had lost the chequebook. She had even informed the Manager regarding the loss of cheque book vide a letter dated 16.5.2017 (Ex.P-2). It was laid down by Hon’ble Supreme Court in G. Someshwar Rao vs. Samineni Nageshwar Rao, (2009) 14 SCC 677 that the accused had a right to a fair trial and he is entitled to lead evidence to prove his innocence. It was observed: “10. Indisputably, an accused is entitled to a fair trial which is a part of his fundamental right as guaranteed under Article 21 of the Constitution of India. The concept, however, cannot be put into a straitjacket formula. A court of law will have to consider each application filed by an accused praying for a comparison of his signature on a disputed document with his admitted signature on its own merits. No hard-and-fast rule can be laid down therefor. 11. The concept, however, cannot be put into a straitjacket formula. A court of law will have to consider each application filed by an accused praying for a comparison of his signature on a disputed document with his admitted signature on its own merits. No hard-and-fast rule can be laid down therefor. 11. Section 243 of the Code of Criminal Procedure, 1973 provides for the grant of an opportunity to the defendant to lead evidence in his defence as also to file a written statement, sub-section (2) whereof reads as under: “243. Evidence for defence: (1) *** (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.” The right of an accused under sub-section (2) of Section 243 of the Code of Criminal Procedure, 1973 is, thus, not an absolute one. He cannot take recourse thereto for the purpose of delaying the proceedings. An application filed by an accused must be for subserving the cause of justice and not for subverting the same. In Kalyani Baskar (2007) 2 SCC 258 : (2007) 1 SCC (Cri) 577 this Court held as under: “12. Section 243(2) is clear that a Magistrate holding an inquiry under 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 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 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 handwriting 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 a fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them.” 12. Kalyani Baskar (2007) 2 SCC 258 : (2007) 1 SCC (Cri) 577 has been followed by this Court in T. Nagappa (2008) 5 SCC 633 : (2008) 2 SCC (Cri) 677, opining: (SCC p. 636, Para 8) “8. An accused has a right to a fair trial. He has a right to defend himself as a part of his human as also a fundamental right as enshrined under Article 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognised by Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure......” 8. Therefore, the accused is entitled to lead evidence to establish her innocence and she cannot be denied this right on the ground that the cheque was not dishonoured on the ground of difference in the signature of the drawer. Thus, the learned Trial Court failed to exercise the jurisdiction vested in it under law. Final order: 9. Therefore, the present petition is allowed and the order passed by the learned Trial Court is ordered to be set aside. The application filed by the complainant is allowed and it is ordered that the disputed signatures of the petitioner and the admitted signatures on the Power of Attorney and other documents before the Court and Specimen Signatures be sent for comparison on the expenses of the accused/petitioner. 10. The application filed by the complainant is allowed and it is ordered that the disputed signatures of the petitioner and the admitted signatures on the Power of Attorney and other documents before the Court and Specimen Signatures be sent for comparison on the expenses of the accused/petitioner. 10. The parties through their counsel are directed to appear before the Learned Trial Court on 28.12.2023.