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CASE NO.: Appeal (crl.)  1293 of 2006

PETITIONER: Mrs. Kalyani Baskar

RESPONDENT: Mrs. M. S. Sampoornam

DATE OF JUDGMENT: 11/12/2006

BENCH: G. P. Mathur & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T [Arising out of S.L.P. (Crl.) No. 2639 OF 2004]

Lokeshwar Singh Panta, J.

       Leave granted.

       This appeal by special leave, directed against the order  dated 10.2.2004 of the High Court of Judicature at Madras,  involves a question with regard to the scope of the powers of  the Magistrate under Section 243 of the Code of Criminal  Procedure, 1973 [hereinafter referred to as ‘Cr.P.C.’].  It arises  out of these circumstances.         A complaint has been preferred by Mrs. M. S.  Sampoornam, complainant-respondent herein, against Mrs.  Kalyani Baskar, appellant herein, and her husband for the  offence under Section 138 of the Negotiable Instruments Act,  1881 [for short "the Act"] before the Judicial Magistrate,  Tambaram, Chennai, alleging that the appellant along with  her husband jointly signed and issued a cheque No. 037296  for discharging their liability.  On presentation of the said  cheque, it was dishonoured for ’insufficient funds’.  Though  the notice was served upon both the accused persons yet no  reply has been sent by them. Thereafter, observing all the  formalities as contemplated under the Act, the complainant- respondent had preferred C.C. No. 439/1998 on the file of the  Judicial Magistrate, Tambaram, Chennai, against the  appellant and her husband.  The accused appeared before the  Magistrate and filed an application under Section 245 of  Cr.P.C.  raising inter alia preliminary objections that:- (1) the  accused has not signed the cheque nor issued it to the  complainant-respondent; (2) the cheque, in question, was  drawn from the individual account of the accused and  therefore, as alleged by the complainant, the accused and her  husband could not have jointly signed and issued the cheque;  (3) the signature on the cheque may be sent for expert opinion  to ascertain bona fide of the same; and (4) neither the  appellant nor her  husband owe any debt to the respondent.           The Judicial Magistrate dismissed the said application on  the ground that the genuineness of the signature could be  questioned only at the time of trial of the complaint.   Thereafter, the trial was commenced and the evidence of the  respondent was recorded.  The banker of the appellant during  the cross-examination deposed that he has not verified the  signature before returning the cheque, in question, as  dishonoured.  In these circumstances, during the trial of the  case the appellant preferred an application under Section 243

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of  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, however, 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,  that the original document filed in the court cannot be sent  out for any reason and that every document filed before the  court should be safe till the disposal of the litigation.         Feeling aggrieved by this order, the appellant preferred a  Criminal Revision Case No. 335 of 2002 under Section 397  read with Section 401 of Cr. P.C in the High Court of  Judicature at Madras.  The Revision Petition came to be  dismissed by the impugned order.  Hence, this appeal by the  appellant.         We have heard Shri V. Krishnamurthy, learned counsel  appearing for the appellant-accused and Shri S.G.K. Kumar,  learned counsel appearing for the respondent and examined  the material on record.         Learned counsel for the appellant contended that the   High Court has failed to appreciate the legal position that no  offence can be established against the appellant by the  respondent unless the respondent proves on record that the  cheque, in question, bears the signature of the appellant.   According to the learned counsel, the appellant cannot be  debarred from entering upon her defence and produce her  evidence without deciding the genuineness of the signature on  the cheque, in question and the dismissal of the application by  the Magistrate has caused miscarriage of justice to the  appellant.           On the other hand, the learned counsel appearing on  behalf of the respondent contended that the Magistrate has  exercised his jurisdiction judiciously as the application filed by  the appellant was with the sole object to protract the trial.  He  submitted that the High Court has recorded a well-reasoned  order in dismissing the revision petition filed by the appellant  and this Court in exercise of its jurisdiction under Article 136  of the Constitution of India should not lightly interfere with  the said order.         We have given our anxious and thoughtful consideration  to the respective contentions of the learned counsel for the  parties.         It is not in dispute that the appellant at the initial stage  of her appearance before the Magistrate had filed an  application under Section 245 Cr.P.C. in which she had  categorically denied her signature on the cheque and its  delivery to the respondent besides raising other preliminary  objections in opposition to the complaint filed by the  respondent under Section 138 of the Act.  From the record, it  appears that the said application was dismissed by the  Magistrate on the ground that the genuineness of the  signature can be questioned only at the time of trial.  The  appellant accepted the correctness of the said order of the  Magistrate.  During the trial, the respondent was examined as  P.W. 1 on 22.09.1999 and PW-3, the officer of the Bank, was  examined on 22.11.2000.  It is thereafter that the appellant  had filed the application under Section 243 Cr.P.C. praying to  send the cheque, in question, for ascertaining the bona fide  and genuineness of her signature appended thereon.  The Trial  Magistrate as well as the High Court have observed that  Section 243 Cr.P.C. deals with summoning of defence  witnesses and cause any document or thing to be produced  through him.  But in the present case, the accused has filed a  petition without naming any person as witness or anything to  be summoned which is to be sent for hand-writing expert for

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examination.           To appreciate the reasoning recorded by the High Court  in its impugned order, it is useful to refer to the provisions of  Section 243 of Cr.P.C., which reads as under:- "243. Evidence for defence.\027(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 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.

       (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."

       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  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

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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.           For all the foregoing reasons, we allow this appeal and  set aside the order of the High Court dated 10.02.2004 passed  in Criminal Revision Case No.335 of 2002 by which the order  dated 15.11.2001 of the Judicial Magistrate made in Crl. M. P.  No.341 of 2001 in C.C. No. 439 of 1998 dismissing the  application of the appellant under Section 243 Cr.P.C. was  affirmed.  Accordingly, Crl. M. P. No.341 of 2001 in C.C.  No.439 of 1998 on the file of the Judicial Magistrate,  Tambaram, Chennai, shall stand allowed.  The learned  Magistrate shall take appropriate steps for obtaining the report  of handwriting expert on the point whether the signature in  the cheque is that of the accused and shall proceed with the  trial of the case in accordance with law.  Since the case is very  old, further proceedings shall be taken with utmost expedition.         We make it clear that any observation made in this order  shall not be construed as an expression of opinion on the  merits of the case and the same shall be decided by the  Magistrate on its own merit.