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CASE NO.: Appeal (crl.)  707 of 2008

PETITIONER: T. Nagappa

RESPONDENT: Y.R. Muralidhar

DATE OF JUDGMENT: 24/04/2008

BENCH: S.B. Sinha & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T REPORTABLE

CRIMINAL APPEAL NO.   707           OF 2008 (Arising out of SLP (Crl.) No.6933 of 2007)

S.B. Sinha, J.

1.      Leave granted. 2.      Appellant is facing criminal charges before the Court of XV  Additional Chief Metropolitan Magistrate, Bangalore in C.C. No.6835 of  2005 purported to be under Section 138 of the Negotiable Instruments Act.   He is said to have issued a cheque in favour of the respondent for a sum of  Rs.7,50,000/- on 8.10.2004 which on depositing in the Bank was allegedly  returned unpaid.  A complaint petition was filed by the respondent  contending that the appellant had committed an offence under Section 138 of  the Negotiable Instruments Act. 3.      On or about 1.8.2006, the appellant filed an application under Section  243 of the Code of Criminal Procedure wrongly mentioned as Section 293 of  the Code of Criminal Procedure, 1973 for referring the cheque in question  for examination by the Director of Forensic Science Laboratory for  determining the age of his signature, contending that the respondent had  obtained a signed cheque from him in the year 1999 as a security for a hand  loan of Rs.50,000/- which had been paid back, but instead of returning the  cheque, the same has been misused by entering a huge amount, which he did  not owe to the appellant. 4.      By reason of an order dated 29.11.2006, the learned Magistrate  dismissed the said application, opining : "Another main contention of the accused is that the  cheque was signed in the year 1999 and the writing  appearing on the cheque has been filled up in the  month of August, October and December 2004.   The accused is at liberty to prove the said aspect  by leading a cogent evidence.  In my opinion, to  prove the age of the writing on Exp-2 it is not  necessary to send the exp-2 to the handwriting  expert.  Thus, viewing from any angle, I do not  find any good reason to refer the Exp-2 to the  handwriting expert as prayed in the petition.   Hence I answer the above said point in the  negative."

5.      A revision application filed thereagainst has also been dismissed by  the High Court, stating : "It is the case of the accused/petitioner herein that  the signed cheque of the accused is misused by the

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petitioner by filling contents therein after about 5  years.  According to the petitioner the cheque is of  the year 1999 and the complainant has filled up the  cheque by dating the said as 9.10.2004.  Hence to  ascertain the age of the cheque, the application  came to be filed by the petitioner which is rejected. The evidence of DW-2, the Assistant Manager of  UCO Bank, Jayanagar Branch, Bangalore coupled  with the recital of Ex.D-11 i.e. the register  pertaining to issuance of cheque book disclosed  that the cheque containing Ex.P-2 (cheque leaf)  was issued by the UCO Bank to the accused on  6.5.1997.  If it is so, ascertaining the age of the  cheque does not arise for consideration. In this matter, the signature on the cheque is  admitted.  If it is so the petitioner cannot dispute  the contents of the cheque in view of the  provisions of Section 20 of Negotiable Instruments  Act.  Hence there is no need to refer the cheque for  Hand Writing Expert."

6.      The learned Trial Judge, as also the High Court, in support of their  respective orders, have relied upon Section 20 of the Negotiable Instruments  Act, which reads as under : "Section 20 - Inchoate stamped instruments.\027 Where one person signs and delivers to another a  paper stamped in accordance with the law relating  to negotiable instruments then in force in 1 [India],  and either wholly blank or having written thereon  an incomplete negotiable instrument, he thereby  gives prima facie authority to the holder thereof to  make or complete, as the case may be, upon it a  negotiable instrument, for any amount specified  therein and not exceeding the amount covered by  the stamp. The person so signing shall be liable  upon such instrument, in the capacity in which he  signed the same, to any holder in due course for  such amount; provided that no person other than a  holder in due course shall recover from the person  delivering the instrument anything in excess of the  amount intended by him to be paid thereunder."

       By reason of the aforementioned provision only a right has been  created in the holder of the cheque subject to the conditions mentioned  therein.  Thereby only a prima facie authority is granted, inter alia, to  complete an incomplete negotiable instrument.         The provision has a rider, namely, no person other than a holder in  due course shall recover from the person delivering the instrument anything  in excess of the amount intended by him to be paid therein. 7.      When a contention has been raised that the complainant has misused  the cheque, even in a case where a presumption can be raised under Section  118(a ) or 139 of the said Act, an opportunity must be granted to the accused  for adducing evidence in rebuttal thereof.  As the law places the burden on  the accused, he must be given an opportunity to discharge it.   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 the Parliament in terms of sub-section  (2) of Section 243 of the Code of Criminal Procedure, which reads as under : "Section 243 - Evidence for defence.\027 (1) \005 (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-

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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."

8.      What should be the nature of evidence is not a matter which should be  left only to the discretion of the Court.  It is the accused who knows how to  prove his defence.  It is true that the court being the master of the  proceedings must determine as to whether the application filed by the  accused in terms of sub-section (2) of Section 243 of the Code is bona fide  or not or whether thereby he intends to bring on record a relevant material.   But ordinarily an accused should be allowed to approach the court for  obtaining its assistance with regard to summoning of witnesses etc.  If  permitted to do so, steps therefor, however, must be taken within a limited  time.  There cannot be any doubt whatsoever that the accused should not be  allowed to unnecessarily protracting the trial or summon witnesses whose  evidence would not be at all relevant. 9.      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  Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) [(2007) 2 SCC 258] (in  which one of us, L.S. Panta, J., was a member) wherein it was held : "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 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."

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10.     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 when the said cheque was signed as  "T.Nagappa" on the front page as well as on the  reverse, or in other words, whether the age of the  writing on Ex.P2 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.P2?"

11.     Ms. Suri, however, pointed out that the application of the appellant  being one under Section 293 of the Code of criminal Procedure was rightly  rejected.  It is now a well settled principle of law that non-mentioning or  wrong mentioning of provision of law would not be of any relevance, if the  Court had the requisite jurisdiction to pass an order. 12.     For the aforementioned reasons, the impugned judgment cannot be  sustained.  It is set aside accordingly with the aforementioned directions.   Appeal is allowed.