Sudhir Kumar vs Ramesh Kumar

Kuldip Singh, Judge

This revision is directed against the order dated 10.01.2012 passed in Cr. M.A. No. 11-IV/2011 in complaint No. 207-1 of 2009 passed by learned Chief Judicial Magistrate, Lahaul Spiti at Kullu. The facts, in brief, are that respondent had filed a complaint u/s 138 of the Negotiable Instruments Act, 1881,( for short ''Act'') against petitioner on account of dishonouring of cheque dated 22.09.2008. The respondent led evidence. The petitioner during defence evidence filed an application under Sections 45,67 of the Evidence Act for examination of cheque by handwriting expert. According to the petitioner, he did not issue cheque dated 22.09.2008.The cheque, according to the petitioner, was issued on 22.07.2008, it was not presented within a period of six months. The date 22.07.2008 has been tampered to 22.09.2008. The counter-foil of the cheque also contains date 22.07.2008. The submission was made for sending the cheque to the handwriting expert for obtaining his opinion on the tampering of date of cheque from 22.07.2008 to 22.09.2008. The application was opposed. The learned Chief judicial Magistrate dismissed the application on 10.01.2012.

Heard. The learned counsel for the petitioner has submitted that from the very beginning it is the stand of the petitioner that date 22.07.2008 of cheque has been tampered to 22.09.2008 to bring the cheque within time. The complaint has been filed on 13.03.2009. The validity of the cheque had expired when it was presented to the bank for encashment. In these circumstances, the petitioner has committed no offence u/s 138 of the Act. The learned Chief Judicial Magistrate has erred in rejecting the application of the petitioner. The learned counsel for the respondent has supported the impugned order.

In the application under Sections 45, 67 of the Evidence Act, it has been stated that the complainant has made a false complaint by tampering original cheque dated 22.07.2008. The petitioner did not issue cheque to the respondent on 22.09.2008.The cheque was issued on 22.07.2008. The respondent deliberately and intentionally tampered the date of cheque to 22.09.2008 by overwriting month ''7'' into ''9''. The petitioner in support of the application filed affidavit. The application was opposed by respondent. The learned Chief Judicial Magistrate on the basis of memo dated 28.01.2009 of the bank has observed that if the date(s) had been altered, amount had been altered, column No. 10 would have been taken care of the objection which requires an alteration to be authenticated by drawer. The opinion of the expert cannot be the basis to decide such kind of cases.

CW-1 Ramesh Kumar was cross-examined and a specific suggestion was given to him that he changed the date ''7'' to ''9'' to overcome limitation, which he denied. DW-2 Sudhir Kumar examined himself as witness and tendered in evidence affidavit Ex.DW1/A which is affidavit of Naresh Kumar. He has stated that second Director of the Company on 22.07.2008 issued cheque to complainant on behalf of the Company. The complainant has filed a false complaint by tampering the cheque issued on 22.07.2008 by overwriting in the column of date of cheque. DW-1 Naresh Kumar has stated that his affidavit Ex.DW1/A may be read in evidence. In cross�examination, he denied that complainant had not tampered the date of cheque.

The learned counsel for the respondent has relied Cr. MMO No. 43 of 2010 decided on 26.07.2010 and Cr. MMO No. 216 of 2011 decided on 24.04.2012 and has submitted that no fault can be found with the impugned order. In Cr. MMO No. 43 of 2010 there was no dispute to the signatures on the cheque. The dispute was that cheque amount was written by petitioner. The respondent had not denied his signatures on the cheque. The Magistrate directed the handwriting expert to determine the age of the signatures of the accused on the cheque with the date of the cheque and the name of the complainant as well as amount written in the cheque. In Cr. MMO No. 216 of 2011, the petitioner had not denied his signatures on the disputed cheque. He disputed date, amount both in words and figures on the cheque to be written by him. On those facts, it was held that it was not necessary to send the cheques in each case to the handwriting expert for opinion.

In Mrs. Kalyani Baskar Vs. Mrs. M.S. Sampornam, , the complaint was filed by respondent against appellant u/s 138 of the Act. The accused filed an application u/s 245 Cr. P.C. praying that signatures on the cheque may be sent for expert opinion to ascertain bonafides of the same. There were other prayers also. The learned Judicial Magistrate dismissed the application on the ground that the genuineness of the signatures can be questioned only at the time of trial of the complaint, during trial appellant preferred an application u/s 243 Cr. P.C. requesting the Magistrate to send the cheque in question for expert opinion to ascertain the correctness and genuineness of the appellant''s signature appearing thereon. The Magistrate dismissed the application on the ground that it was not mandatory that every disputed document or signature has to be sent to an expert for opinion.

The Supreme Court in Kalyani Baskar (Mrs.) supra held as follows:-

Section 243(2) is clear that a Magistrate holding an inquiry under CrPC 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 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 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. We have not been able to appreciate the view of the learned Judge of the High Court that the petitioner has filed application u/s 243 CrPC 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) CrPC 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 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 the present case, from the very beginning, the petitioner has taken the defence that month ''7'' has been interpolated to ''9'' in the cheque by respondent in order to overcome limitation. The cheque was returned vide memo dated 28.01.2009 reproduced in the impugned order. According to the petitioner, the cheque was to be encashed on or before 22.01.2009. It has been dishonoured on 28.01.2009 and, therefore, according to the petitioner, he has committed no offence under the Act. The learned Chief Judicial Magistrate has rejected the application after noticing columns No. 3,10 of the memo dated 28.01.2009. In other words, since in the memo dated 28.01.2009 the bank had not noticed tampering, therefore, the learned Chief Judicial Magistrate rejected the application of the petitioner for obtaining expert opinion of tampering on month ''7'' to ''9'' on the disputed cheque.

The opinion of the expert may not be necessary to decide dispute in all cases, but in the facts and circumstances of the present case where there is an allegation of tampering of month ''7'' to ''9'', the opinion of handwriting expert will certainly assist the Court in deciding the dispute. There is no finding of learned Chief Judicial Magistrate that even, prima facie, there is no overwriting of the month ''7'' to ''9'' on the disputed cheque nor there is a finding that application is malafide. It is not a case where almost at the end of the trial the petitioner moved the application for sending the cheque to the handwriting expert without laying foundation during trial of the case by disputing that month ''7'' has been tampered to ''9'' in the disputed cheque. The petitioner right from the very beginning of the trial in the present case has projected his defence that month ''7'' has been overwritten to ''9'' on the disputed cheque by the respondent. In the facts and circumstances of the case, the learned Chief Judicial Magistrate has erred in dismissing the application of the petitioner for sending the cheque to the handwriting expert. In view of above, revision is allowed. The order dated 10.01.2012 passed in Cr. M.A. No. 11-IV/2011 in complaint No. 207-1 of 2009 by learned Chief Judicial Magistrate, Lahaul Spiti at Kullu, is set aside. The application of the petitioner for sending the cheque to the handwriting expert is allowed. The learned Chief Judicial Magistrate is directed to send the cheque in question to the handwriting expert at the expense of the petitioner. The parties through counsel are directed to appear before learned Chief Judicial Magistrate, Lahaul Spiti at Kullu, on 13.08.2012. All pending applications are disposed of.