Mukesh Goyal vs Yasin Patel

S.S. Dwivedi, J.

The applicant/accused has filed this petition u/s 482 Cr. P.C. for setting aside of the impugned order dated 18.08.2008 passed by JMFC Indore in Criminal Case No. 1977/07 whereby rejected the application filed u/s 45 of the Evidence Act for sending the disputed cheque for examination by the handwriting expert.

Briefly stated the facts of the case are that the applicant/accused is facing trial u/s 138 of the Negotiable Instruments Act (hereinafter referred to as the "NI Act" for brevity) before the JMFC Indore. In this case, at the defence stage the applicant/accused has filed an application u/s 45 of the Evidence Act, praying that the disputed cheque be sent for examination by the handwriting expert with regard to the difference of writings in the signature as well as in the operative part of the cheque concerned. Learned trial Court after hearing both the parties by the impugned order dated 18.08.2008 dismissed the application; aggrieved by which the applicant has preferred Criminal Revision No. 591/08 before the Sessions Judge, Indore. The learned revisional Court has also rejected the revision petition; aggrieved by which the applicant/accused has come up before this Court by this petition u/s 482 Cr. P.C.

Having heard learned counsel for the parties and perused the record.

It is submitted by learned counsel for the applicant that it is on record by the statement of defence witness Shriram (DW1) that the disputed cheque is from a cheque book issued in the year 1997 by the bank concerned whereas on that cheque the date of issuance is mentioned as 2003, which is forged one and the complainant is misusing the blank cheque issued by the applicant with regard to the surety of the amount concerned which he had already paid to the complainant and to prove the aforesaid facts the applicant/ accused has filed the aforesaid application u/s 45 of the Evidence Act for examination of the disputed cheque by some handwriting expert so that the difference in between the writing of signature and the writing of other material on the cheque can be examined by the handwriting expert. The learned trial Court has wrongly rejected the aforesaid application and thereby denied the valuable right of the applicant/accused rebut the complainant''s case and thereby committed gross mistake, therefore, prayed for setting aside of the impugned order passed by the Court below and for a direction for examination of the disputed cheque by some handwriting expert.

Learned counsel appearing on behalf of the complainant supported the impugned order and submits that if the applicant/accused has admitted the signature on the disputed cheque then certainly he has no right to challenge the operative part of the cheque concerned for which a legal presumption ought to be drawn as per provision of Section 20 of NI Act and in such circumstances there is no necessity for sending cheque for examination by the handwriting expert and by rejecting the aforesaid application the trial Court has not committed and illegality, on which basis the impugned order can be set aside. Therefore, prayed for dismissal of the petition.

After consideration on the rival contention of both the counsel it is apparent that the applicant/accused has admitted his signature on the disputed cheque then certainly the presumption arises as per provisions of Section 20 of the NI Act with regard to the fact that the cheque had been issued by the signatory after filling it properly but in the present case the circumstances are having different aspect. The defence witness Shriram (DW1) examined by the accused had clearly stated that the disputed cheque belonged to a cheque book issued by the bank in the year 1997 whereas the date mentioned in the cheque is of the year 2003. He also admitted the fact it makes no difference that from a cheque book issued in the year 1997 a cheque can be issued in the year 2003 and this cheque cannot be disowned only on the basis of the fact that the cheque belongs to a cheque book issued in the year 1997 but in view of that the fact remains for consideration as to whether the cheque had been issued in the year 1997 or 2003 itself, which date is mentioned in the cheque concerned and to prove the aforesaid fact the applicant/accused has applied for examination of the cheque by some handwriting expert, who can opine as to whether the writing of signature as well as other writing over the cheque had been written on the same date or having different age of writing.

For this proposition learned counsel for the applicant placed reliance on the decision of the Hon''ble Apex Court in case of T. Nagappa Vs. Y.R. Muralidhar, reported in AIR 2008 SCW 3349, wherein in the same circumstances wherein the age of writing of the cheque as well as signature of the accused are in dispute, the Hon''ble Apex Court allowed the appeal and directed examination of the cheque by some handwriting expert so that the age of both the writings can be ascertained, and held hereas under:

The learned Trial Judge as also the High Court rejected the contention of the appellant only having regard to the provisions of Section 20 of the Negotiable Instruments Act. The very fact that by reason thereof, only a prima facie right had been conferred upon the holder of the negotiable instrument and the same being subject to the conditions as noticed hereinbefore, we are of the opinion that the application filed by the appellant was bona fide.

The issue now almost stands concluded by a decision of this Court in Mrs. Kalyani Baskar Vs. Mrs. M.S. Sampornam, , wherein it was held :

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 u/s 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 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 haying declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant 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 defende 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 the courts should be jealous in seeing that there is no breach of them.

However, it is not necessary to have any expert opinion on the question other than the following:

Whether the writings appearing in the said cheque on the front page is written on the same day and time the said cheque was signed as "T. Nagappa" on the front page as well us on the ''verse, or in other words, whether the age of the writing on Ex. P/2 on the front page is the same as that of the signature "T. Nagappa" appearing on the front as well as on the reverse of the cheque Ex. P/2?

On the basis of the aforesaid law laid down by the Hon''ble Apex Court, the facts of the present case also appear to be same wherein the applicant/accused is taking a defence that the cheque has been signed in the year 1997 and it has been forged by the complainant by writing the year 2003. Therefore, it will be a beneficial evidence in favour of the applicant/ accused to ascertain the age of both the writings, signature of the applicant as well as other remaining writing on the cheque concerned, and by rejecting the aforesaid application for examination of the cheque in question by some handwriting expert the applicant/accused has been deprived of his valuable right for fair trial and right to rebut the complainant''s case.

Learned counsel for the respondent/complainant has placed reliance on the decision in the case of K.Bhaskaran Vs. Shankaran Vidyanabalan, reported in 2000 (1) MPLJ, which has also been relied by the Hon''ble Apex Court in the aforesaid decision of T. Nagappa (supra). Similarly, he also placed reliance on the decision in the case of H. Margoda Vs. Thipamma, reported in AIR 2000 Kar 169, and Mohammed Ali Vs. Abdul Sinab, , wherein it is held that "if the signature on the cheque has been admitted by the signatory then a presumption u/s 20 of the NI Act is available in favour of the complainant".

In the facts of the present case it is apparent that the applicant has been deprived of the right to prove the fact that initially the cheque had been issued in the year 1997 and it has been forged by the complainant by wrongly mentioning the date as in the year ''2003'' on the cheque, therefore, the age of writing on the disputed cheque is material for determination of the rights of the applicant/accused and in such circumstances, as held by the Hon''ble Apex Court in T. Nagappa''s case (supra) the applicant is entitled to get the cheque examined by the handwriting expert and ascertained the age of both the writings.

Resultantly, the petition filed by the applicant is allowed. The impugned order passed by the trial Court is set aside and it is directed that the trial Court will call the handwriting expert for examination of the cheque concerned with a view to ascertain the age of writings on the disputed cheque as to whether both the writings are of the same period or of different period. After obtaining report and recording of the statement of the handwriting expert the trial Court will proceed with the trial according to law. The costs of the handwriting expert will be borne by the applicant/accused.

With this direction, the petition is disposed of.