REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1353        OF 2009 [Arising out of S.L.P.(Crl.)No.6278 of 2007]

G. Someshwar Rao      …..Appellant

Versus

Samineni Nageshwar Rao & Anr.       …..Respondents

W I T H  

CRIMINAL APPEAL NO.    1354        OF 2009 [Arising out of S.L.P.(Crl.)No.6838 of 2007]

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.

2. Challenge in this appeal, which arises out of S.L.P.(Crl.)No.6278 of  

2007 is to a judgment and order dated 22nd August 2007 passed by a learned  

Single Judge of the High Court of Andhra Pradesh whereby and whereunder  

a  revision  application,  filed  by  the  appellant  herein,  arising  out  of  a  

judgment  and  order  dated  07th April  2007  passed  by  the  Ist  Additional

Judicial Magistrate of First Class, Khammam dismissing an application filed  

by  the  appellant  for  sending  the  disputed  pronote  and  the  cheque  for  

examination of a handwriting expert, was dismissed.

3. According to the appellant, an agreement to sell was entered into in  

terms whereof one Bangi Venkanna and Y. Satyanarayana, brother-in-law of  

the 1st respondent agreed to purchase the appellant’s share of the suit land for  

a total consideration of Rs.12,00,000/- (Rupees twelve lacs) and out of the  

said amount, a sum of Rs.4,00,000/- (Rupees four lacs) was paid by way of  

advance.  According to him, as the said agreement could not be given into  

effect to, the same stood cancelled vide another agreement dated 22nd August  

2004 and the disputes stood amicably settled.

4. However,  first  respondent  herein  filed  a  complaint  petition,  being  

C.C.No.77  of  2005,  against  the  appellant  for  commission  of  an  offence  

under Section 138 of the Negotiable Instruments Act, 1881 on the premise  

that the appellant had executed one pronote on 21st October 2002 for a sum  

of Rs.5,00,000/- (Rupees five lacs).  It was also alleged that he also issued a  

cheque  bearing  no.400707  on  25th October  2004  for  another  sum  of  

Rs.6,00,000/- (Rupees six lacs) purportedly in favour of the 1st respondent  

drawn on State  Bank of Hyderabad,  Suryapet  Branch.   The said cheque,  

according to the said respondent, when presented before the bank for having  

been honoured, was returned with the remarks ‘Insufficient Funds’.

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5. Appellant  contended that  the said pronote as  also the  cheque were  

forged and fabricated.  He also denied and disputed execution of the said  

cheque.   He,  therefore,  filed  an  application  for  examination  of  the  said  

pronote  as  also  the  cheque,  which  were  marked  as  Exs.P-1  and  P-2  

respectively, by a handwriting expert.   

The said application, being Crl.M.P.No.757 of 2007 in C.C. No.77 of  

2005,  however,  was  dismissed by an  order  dated 07th April  2007 by the  

learned 1st Addl. Judicial Magistrate, relying on a decision of the High Court  

of  Andhra  Pradesh  being  Renu  Devi  Kedia v.  Seetha  Devi reported  in  

2004(6) ALT 429 and another decision reported in 2005(1) ALD (Crl.) 161  

(AP), stating :

“12. In view of the decision of our own Hon’ble  Court referred to above, there is every possibility  for  a  party  to  disguise  his  signatures  and as  the  transaction under Ex.P1 does not relate to Exs.P-1  and P-2, the same cannot be taken as an admitted  document for comparison of the signatures of the  petitioner  /  accused.   Therefore,  I  see  no  useful  purpose will be served in sending Exs.P-1 and P-2  to the Expert for comparison.  Hence, I do not find  any  valid  reason  to  allow  this  petition  and  accordingly, the petition is dismissed.”

6. The High Court, as noticed hereinbefore, by reason of the impugned  

order  dated  22nd August  2007,  dismissed  the  revision  application  filed  

against the said order being Crl.M.P.No.757 of 2007, stating:

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“On a perusal of the evidence of P.W.1, it is clear  that  P.W.1  has  specifically  stated  that  Ex.P1- pronote  and Ex.P2-cheque  were  executed  by  the  accused.  That evidence has not been challenged in  the cross-examination, except putting a suggestion  that one Venkanna put his signature in the name of  the accused.  There is no specific denial that the  accused did not sign on Exs.P1 and P2.  Therefore,  the  petition  under  Section  45  of  the  Indian  Evidence Act is purported to have been filed only  to drag on the matter.  The calendar case is of the  year 2005 and in the absence of any specific denial  with regard to the execution of Ex.P1-pronote and  issuance of Ex.P2-cheque, the question of sending  those documents to the expert for comparison with  the admitted signatures does not arise.   The trial  Court has rightly dismissed the said petition, and  therefore,  I  am of  the  view that  the  order  under  challenge does not suffer from any legal infirmities  so as to call for interference by this Court, and as  such, the present Criminal Revision Case is liable  to be dismissed.”

Appellant,  however,  on  or  about  20th June  2007  filed  another  

application, being Crl.M.P. No.1325 of 2007 in C.C. No.77 of 2005, for the  

same  purpose  which,  by  reason  of  an  order  dated  04th July  2007,  was  

dismissed by the said learned Magistrate, inter alia, holding :

“As rightly pointed out by the learned counsel for  the  respondent/complainant,  this  court  dismissed  the petition in Crl.M.P.No.757 of 2007 by its order  dated 7-4-2007 by turning down the request of the  petitioner  to  send  Ex.D1  documents  to  the  Handwriting  Expert  by  holding  that  Ex.D1  does  not relate to Exs.P1 & P2 and, therefore, the same  cannot  be  taken  as  an  admitted  documents  for  comparison of the signatures of the petitioner.”

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7. Revision application filed by the appellant thereagainst has also been  

dismissed by the High Court by a separate order passed on the same date,  

viz., 22nd August 2007 in Crl.Revision Case No.995 of 2007 which has also  

been challenged by the appellant by filing a separate Special Leave Petition  

being S.L.P.(Crl.)No.6838 of 2007.

8. Mr. C. Mukund, learned counsel appearing on behalf of the appellant  

would submit that having regard to the fact that the accused is entitled to a  

fair trial, his application for examination by an expert within the meaning of  

Section 45 of the Indian Evidence Act, 1872 for the purpose of establishing  

that  a  document,  whereupon  the  prosecution  rests  its  case,  being  not  

genuine, the court was under a constitutional obligation to ensure that he is  

permitted to take all defences.

Strong reliance in this behalf has been placed on judgments of this  

Court  in  the  case  of  Kalyani  Baskar  (Mrs.) v.  M.S.  Sampoornam (Mrs.)  

(2007) 2 SCC 258 and in the case of  T. Nagappa v. Y.R. Muralidhar (2008)  

5 SCC 633.

We may place on record that in spite of service no one has entered  

appearance on behalf of respondent no.1.

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9. 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 to a straight jacket formula.  A  

court  of  law will  have  to  consider  each  application  filed  by  an  accused  

praying for 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.   

10. Section 243 of the Code of Criminal  Procedure,  1973 provides for  

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 had 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.

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(3) … … …”

The right of an accused under sub-section (2) of Section 243 of the  

Evidence Act 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.   

11. In the case of Kalyani Baskar (supra), this Court held as under :

“12. 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  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  

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defence is  a valuable right.   Denial  of  that  right  means denial of fair trial.  It is essential that rules  or procedure designed to ensure justice should be  scrupulously  followed,  and  the  courts  should  be  jealous in seeing that there is no breach of them.  ….”

The said decision has been followed by this Court in the case of  T.  

Nagappa (supra) opining :

“8. An accused has a right to fair trial.  He has a  right to defend himself as a part of his human as  also 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 recognized by Parliament in terms of  sub-section  (2)  of  Section  243  of  the  Code  of  Criminal Procedure, …..”

12. In this case, the pronote was issued in the year 2002.  The cheque was  

issued in the year 2004.  The complaint petition was filed in the year 2004.  

The complainant examined his witnesses in between the period September  

2006 and February 2007.  Appellant examined his own witnesses.  They had  

been cross-examined.   The learned Magistrate noticed that even the legal  

notice served upon him was not accepted by the appellant.  The court, in the  

aforementioned  situation,  held  that  the  gap  between  execution  of  two  

signatures is such where some variance is possible.  Rightly or wrongly, his  

application was dismissed by an order dated 07th April 2007.  Immediately  

thereafter  another application was filed on 20th June 2007 which was not  

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maintainable  as  allowing the same would have amounted to  recall  of  an  

order passed by the learned Magistrate himself being impermissible in law.  

In  the  latter  application  only  the  document  which  was  to  be  sent  for  

comparison was changed.

13. Evidently,  he  had  filed  two  successive  applications;  the  second  

application was, thus, not maintainable.  This itself  goes to show that he  

intended to delay the disposal of the matter.  He could have examined his  

own expert.  He may still do so for which, we are sure, the court shall grant  

him reasonable opportunity.  Even now, the court will be entitled to exercise  

its jurisdiction, if it so thinks fit and proper in terms of Section 73 of the  

Indian Evidence Act.   

14. Keeping in view the peculiar facts and circumstances of this case, we  

are  of  the  opinion  that  the  interest  of  justice  would  be  subserved  if  an  

opportunity is granted to the appellant to examine an expert at his own costs.  

If he requisitions the services of an expert, the learned Judge would grant  

him an opportunity to examine the disputed documents, submit a report and  

examine himself as a witness in the case preferably on the same date.  Such  

a step, however, must be taken by the appellant within six weeks from date.

15. With the aforementioned observations and directions,  these appeals  

are dismissed.

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……………….…..………….J. [S.B. Sinha]

..………………..……………J.  [Cyriac Joseph]

New Delhi. July 29, 2009.

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