ORDER S. Muralidhar, J.
1. An interesting question arises in this petition under Section 482 of the Code of Criminal Procedure, 1973 ('CrPC') concerning the scope of the powers of a Metropolitan Magistrate ('MM'), trying a complaint case under Section 138 of the Negotiable Instruments Act, 1881 ('NI Act') to ask for the opinion of the Central Forensic Science Laboratory ('CFSL') on the handwriting on the cheques in question despite an application filed by the complainant for the same relief having been dismissed earlier by the learned MM.
Background facts
2. The brief facts to filing of this petition are that a complaint being Criminal Case No. 429/1 was filed by the petitioner against the respondent under Section 138 NI Act in the court of learned MM on 18th March, 2002 with regard to the dishonour of two cheques: cheque No. 315106 dated 20th August, 2001 for a sum of Rs. 20 lakhs and cheque No. 315108 dated 28th December, 2001 for a sum of Rs. 32 lakhs. The allegation in the complaint was that the respondent Swaraj Pal Singh had issued the aforementioned cheques in favor of the complainant towards discharge of an admitted liability. Both cheques were, on presentation to the bank for payment, dishonoured with the remarks "insufficient funds." After issuing notices demanding payment, the petitioner filed the aforementioned complaint.
3. On 17th September 2002 the learned MM passed a summoning order. The application by the respondent recalling the summoning order was dismissed by the learned MM an order dated 9th February 2004. One of the contentions raised by the respondent in support of prayer for recalling the summoning order was that the cheques in question were entrusted to the complainant as a part of the business transactions between the parties and were not meant to be encashed. It was stated that the cheques had been tampered with, filled by the complainant or his associates to make alteration in the amount and the dates without the consent of the drawer i.e. respondent. While rejecting this contention the learned MM in the said order dated 9th February, 2004 observed as under:
The accused has filed application for recalling of the summoning order on the grounds that the said cheques were not issued on account of any liability and the said cheques were given to the complainant as security for business purposes. The accused has also alleged that the accused misused the said cheques after tampering the same. It is important to note that the accused has admitted that the cheques have been signed by him and were issued in favor of the complainant. The allegations of the accused/applicant that the cheques were not issued in discharge of liability requires evidence which the parties have yet to lead. Further the other allegation as mentioned in the application that the complainant has misused the said cheques after tampering the same can also be not decided without evidence which the parties have yet to lead.
4. By a subsequent order dated 20th April 2004 the learned MM framed charges under Section 251 CrPC. The complainant's evidence was then closed on 22nd December 2004. Meanwhile, Crl Rev. P. No. 440 of 2004 filed by the respondent challenging the order dated 9th February 2004 passed by the learned MM was dismissed as withdrawn by the learned Additional Sessions Judge (ASJ).
5. Several adjournments were granted for the production of defense witnesses. On 15th July 2005 the respondent examined himself as DW-1 and was also cross-examined in part. The cross examination was concluded on 17th August 2005. DW-2 was examined on 7th December 2005 and thereafter the defense evidence was closed. The case was listed for final arguments for 13th February, 2006 and after the arguments of the complainant were heard on that date the case was adjourned to 15th February, 2006. Again an adjournment was granted for 15th February, 2006. Thereafter on 8th March, 2006 by a detailed order the trial court disposed of an application dated 31st August, 2005 filed by the respondent for sending the cheques in question for the opinion of a handwriting expert.
6. The Crl Rev. Petition No. 44 of 2006 filed by the respondent challenging the said order was dismissed as withdrawn before the learned ASJ on 18th March 2006. The said order has become final.
7. The Respondent also filed an application under Section 311 CrPC for recalling the complainant. By a detailed order dated 8th March 2006, the learned MM dismissed this application. Crl. Rev. P. No. 45 of 2006 filed by the respondent against the said order was dismissed by learned ASJ by another detailed order dated 20th March 2006.
8. After the dismissal of aforementioned revision petitions the respondent moved applications for adjournment. On 23rd March 2006 part arguments were heard. Adjournment was granted on 30th March 2006 and 3rd April 2006. The matter was fixed for judgment on 10th April, 2006. On that date the application filed by the respondent for referring the matter to the mediation cell was dismissed and the case adjourned to 17th April, 2006. The respondent then filed a transfer application before learned Chief Metropolitan Magistrate ('CMM'). Without notice to the accused, the case was transferred to the court of another learned MM. Again the case was adjourned for final arguments for 22nd May, 2006. Further adjournments were granted on 11th July, 2006 and 22nd July, 2006. Thereafter Shri Sunil Chaudhary, the learned MM passed an order stating that the case should be transferred to any other court. However, on 7th September 2006 the learned CMM passed an order holding that there was no reason to transfer the matter to any other court. During the course of hearing of final arguments on 14th September 2006, the learned MM Shri Sunil Chaudhary passed the following order:
It is the claim of the complainant that the two cheques were issued in his favor by the accused in discharge of legal liability whereas it is the stand of the accused that the said cheques were given to one Sh. L.K. Joshi for the security purpose and the said cheques were blank at the time of handing over. The complainant during cross examination categorically deposed that the cheques marked CW1'C and D given much prior to 28.8.01 and the entire cheque were complete filled in and no portion was blank or unwritten. The suggestion that the cheque Exh. CW1/B was not having and date and the cheque Exh. CW1/C the amounts in figure and words date were not written at the time of handing over the same to him is denied. To properly adjudicate the matter and to appreciate the evidence whether the cheques were given as security to the complainant as claimed by the accused I am of the view that opinion of an expert regarding the handwritings upon the cheques is necessary.
Let the cheques be sent to the CFSL for getting an opinion whether the same are filled in the handwriting of the accused or in some other person.
Put up on 19.09.06 for appearance of parties and furnishing handwriting by the accused.
9. Aggrieved by aforementioned order, the present petition has been filed by the complainant.
Submissions of counsel
10. The submissions of Mr. K.K. Manan learned Counsel for the Petitioner are as under:
(i) A similar same request for referring the cheques in question for the opinion of the handwriting expert was turned down by the learned MM by a detailed order dated 8th March 2006, which attained finality with the dismissal of the revision petition on 18th March, 2006.
(ii) The learned MM did not have the power to recall his own order and again send the two cheques in question for the opinion of the CFSL. This would not only delay the proceedings but also defeat the ends of justice.
(iii) The Respondent already admitted his liability during the recording of his statement under Section 313 CrPC as well as during his examination as a defense witness DW 1.
(iv) It is submitted that what was relevant for the offence under Section 138 NI Act was that the cheque in question must be signed by the drawer. The mere fact that the payee's name and amount are not in the handwriting of the drawer did not invalidate the cheque. It is accordingly submitted that there was no occasion for the learned MM to suo motu refer the cheques in question for the opinion of handwriting expert in the CFSL. Reliance was placed on the judgments in Lillykutty v. Lawrance 2003(2) DCR 610, Rajpal Singh v. State of Uttaranchal and Ors. 2005(2) DCR 703, P.S.S. Thamotharan v. Dalmia Cements (B) Limited 2005 (1) DCR 85, Bhaskaran Chandrashekharan v. Radhakrishnan 1998 (1) KLT 881, Ganadhara Panicker v. Haridasan 1989 (2) KLT 730, Mangal Singh v. Khurana Chemicals 2006 (2) DCR 145 and Inderchand v. Gokul 2006 (2) DCR 589.
(v) In terms of Section 118 NI Act there was presumption that every negotiable instrument bearing a date was made or drawn on such date and the burden of proving the contrary was on the person alleging that the said cheque had been obtained by fraud. It is accordingly submitted that the impugned order requires to be set aside.
11. Mr. Sudhir Nandrajog, learned Counsel appearing on behalf of the respondent submits as under:
(i) The earlier order dated 8th March, 2006 passed by the learned MM had left the question of referring the cheques for an expert opinion open for consideration at a subsequent point in time. Thereafter there was no bar to the learned MM, at the stage of final arguments, to suo motu refer the cheques in question for the opinion of the CFSL.
(ii) Relying on the judgments of the Supreme Court in Fakhruddin v. The State of Madhya Pradesh AIR 1967 SC 1326, Jamatraj Kewaliji Govani v. State of Maharashtra and State v. Pali Ram it is submitted that the trial court had wide powers in the interest of justice to refer the cheques for opinion of the handwriting expert and accordingly no fault can be found with the impugned order.
(iii) Relying on the judgment of the Supreme Court in Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) , it is submitted that in a case the offence under Section 138 NI Act the learned MM should ordinarily entertain a request by the defense for referring the cheques for opinion of the handwriting expert since that was a valuable right the denial of which would mean the denial of a fair trial.
(iv) A reference was made to the judgment in Zahira Habibulla H. Sheikh v. State of Gujarat to contend that in the interests of justice the trial court would have the powers to even refer the cheques in question for opinion of the handwriting expert notwithstanding the refusal of such request earlier by a judicial order dated 8th March, 2006.
(v) A reference is also made to the judgment in Ajit Savant Majagavi v. State of Karnataka to contend that the trial court should not normally take upon itself the task of comparing the disputed signatures with the admitted signatures and should leave it to the opinion of the experts.
Effect of the earlier order dated 8th March 2006 of the learned MM
12. In order to appreciate the rival contentions, it is necessary first to examine the order dated 8th March, 2006 passed by the Learned MM refusing the request of respondent to send the two cheques in question for the opinion of the handwriting expert in the CFSL. The operative portion of the said order reads as under:
A perusal of the records shows that as per the order dated 31.08.05 two applications were moved on behalf of the accused. However, subsequently to that there is nothing to show that the said applications were either pressed or disposed off. In fact the accused had moved an application dated 17.08.05 for summoning defense evidence which was allowed vide order dated 13.09.05. Thereafter as well opportunities were granted to the accused for defense evidence, which was closed on 17.12.05. In the application dated 31.08.05 it was averred that the complainant had misused the cheques given to him as part of business understanding and had filled in the cheques himself in different inks and different hand writing and this fact needs to be examined after examination by the hand writing expert in order to determine the actual reality pertaining to the cheques. It is averred that prima facie from the face of it, it is clear that the cheques have been misused by the complainant as the same were never issued towards discharge of any liability. It is averred that the cheques be sent to hand writing expert in the CFSL Lab at Hyderabad to know whether the cheques have been filled in different hand writings and different inks and examination of the hand writing expert is material to prove defense of the application. It is thus prayed that the cheques be sent to hand writing expert in the CFSL lab at Hyderabad.
As per the accused the cheques were issued as a security and amount of cheques was filled in by the complainant by misusing the same. However, the accused has not disputes the signatures on the cheque. The accused has already lead his evidence in defense and whether the writing on the cheque is the same as the signatures or of a different person can be judicially taken note of by the court under the provisions of Evidence Act.
In the light of the above no ground is made out to send the cheques to hand writing expert in the CFSL Lab at Hyderabad. Accordingly the application is dismissed.
13. It is not possible to accept the submission of the learned Counsel for the respondent that the question whether the cheques should be sent for the opinion of the CFSL was left open for consideration of the learned MM at a subsequent point in time. The aforementioned order expressly rejects such request without any qualification. It only states that question whether the writing of the cheques is the same as the signatures of the accused or of a different person 'can be judicially taken note of under the provisions of the Evidence Act'. The above order has admittedly attained finality since the Crl. Rev. Petition No. 44 of 2006 filed by the respondent challenging the order dated 8th March, 2006 was dismissed by the ASJ as withdrawn on 18th March 2006. This order having become final, it was not open to the respondent to once again urge before the Learned MM that the cheques in question should be sent to the CFSL for opinion of the handwriting expert. That brings us to the next question whether the learned MM could have referred the cheques for opinion of the handwriting expert suo motu?
Scope of the powers of the MM to refer the cheques for opinion of handwriting expert
14. As regards the scope of the powers of the trial court to refer a document for the opinion of the handwriting expert at any stage of the trial, the judgments of the Supreme Court in Fakhruddin v. The State of Madhya Pradesh and State v. Pali Ram are instructive. In the last mentioned case State v. Pali Ram, the Supreme Court explained a law in this regard as under:
27. In the Revision Petition filed by the accused before the High Court a grievance is sought to be made out that the Magistrate's order will work prejudice to the defense and enable the prosecution to fill gaps and loopholes in its case. This contention was devoid of force. Once a Magistrate in seisin of a case, duly forms an opinion that the assistance of an expert is essential to enable the Court to arrive at a just determination of the issue of the identity of the disputed writing, the fact that this may result in the filling of loopholes" in the prosecution case is purely a subsidiary factor which must give way to the paramount consideration of doing justice. Moreover, it could not be predicted at this stage whether the opinion of the Government Expert of Questioned Documents would go in favor of the prosecution or the defense. The argument raised before the High Court was thus purely speculative.
28. In addition to Section 73, there are two other provisions resting on the same principle, namely, Section 165, Evidence Act and Section 540 Cr.P.C., 1898, which between them invest the Court with a vide discretion to call and examine any one as a witness, if it is bona fide of the opinion that his examination is necessary for a just decision of the case. In passing the order which he did, the Magistrate was acting well within the bounds of this principle.
29. The matter can be viewed from another angle, also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence solely on comparison made by himself. It is, therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert.
32. Since even where proof of handwriting which is in nature comparison, exists, a duty is cast on the Court to use its own eyes and mind to compare, the admitted writing with the disputed one to verify and reach its own conclusion, it will not be wrong to say that when a Court seized of a case, directs an accused person present before it to write down a sample writing, such direction in the ultimate analysis, "is for the purpose of enabling the Court to compare" the writing so written with the writing alleged to have been written by such person, within the contemplation of Section 73. That is to say, the words 'for the purpose of enabling the Court to compare' do not exclude the use of such "admitted" or sample writing for comparison with the alleged writing of the accused, by a handwriting expert cited as a witness by any of the parties. Even where no such expert witness is cited or examined by either party, the Court may, if it thinks necessary for the ends of justice, on its own motion, call an expert witness, allow him to compare the sample writing with the alleged writing and thus give his expert assistance to enable the Court to compare the two writings and arrive at a proper conclusion.
15. This was later reiterated by the Supreme Court in the judgment in Ajit Savant Majagvai v. State of Karnataka. The law that the trial court is free to exercise its powers for the ends of justice and refer a document for the opinion of an expert is fairly well settled. However, as far as the present case is concerned the question is whether after the learned MM has by a detailed order dated 8th March, 2006 rejected such a request, and the order has become final, he can at a subsequent stage suo motu refer the cheques in question for the opinion of the CFSL. The learned Counsel for the respondent was unable to point out any provision under the CrPC which permits that. Nor do any of the judgments referred to hereinabove contemplate such a situation.
16.1 The decision in Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) was referred to at length by learned Counsel for the respondent and therefore it requires to be discussed in some detail. The facts of the case were that in application filed by the accused for discharge a ground raised was that the cheques ought to have been referred for the opinion of the handwriting expert. The application was dismissed by the Magistrate holding that the genuineness of the signature could be questioned only at the time of trial. During the trial, the appellant preferred an application under Section 243 CrPC seeking referral of the cheques for expert onion. The dismissal of this application by the Magistrate was confirmed by the High Court.
16.2 On above facts, the Supreme Court in Kalyani Baskar held as under:
12. Section 243(2) is clear that a Magistrate holding an inquiry under the Cr.P.C. in respect of an offence friable 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 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 defense 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 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 defense. 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.
16.3 It is clear that in the above case the request for sending the cheques in question to the handwriting expert only made once by the accused and not as in this case on two occasions. Further in Kalyani Baskar, the decision of the learned MM rejecting the request was carried in revision to the High Court and thereafter to the Supreme Court. However, in the present case, the order dated 8th March 2006 was not challenged by the accused further after the dismissal of the revision petition. There is nothing in Kalyani Baskar which indicates that despite a Magistrate by a judicial order having rejected the request for referring the cheques in question to a handwriting expert, it can thereafter suo motu refer those very cheques to a handwriting expert. Indeed, if such a proposition were to be accepted, it would virtually amount to permitting the learned MM to either review his own order or the order of the predecessor. That is clearly impermissible in the scheme of the CrPC.
17. Viewed it from any angle, the order of the learned MM passed by 14th September, 2006 deciding to refer the cheques for the opinion of the CFSL is unsustainable in law.
Should the cheques have been referred at all for opinion of the handwriting expert?
18. Learned Counsel for the petitioner submitted that in any event the cheques in question could not have been referred for opinion of the handwriting expert since the mere fact that the payee's name and amount were in a different handwriting in the cheque, could not be the reason for not honouring the cheques. This submission appears to be well-founded.
19. Although in his examination chief the respondent had set up a case that the cheques in question had not been filled as regards words and figures at the time of handing over to the complainant, in his cross examination he has stated as under:
It is correct that received the notice which is Ex. CW1/E and it is also correct that I replied the above said notice vide my reply Ex. CW1/G. It is correct that I have accepted the liability in the reply of the notice vide Ex. CW1/G and undertook to reply the loan. Vol. The said amount paid by the complainant was received be me as a part payment against the agricultural land, which they wanted to purchase from me and since they failed to made the balance payment, therefore, the said amount was forfeited. I have already stated in my statement U/S 313 CrPC which I have given my examination-in- chief today. It is correct that cheques Ex. CW1/B and Ex. CW1/C have been issued by me and bear my signatures.
In fact in one of the cheques the cutting of the figure constituting the cheque amount has been again signed by the drawer. The extracted portion of the cross-examination reveals that the signatures on the cheques have not been denied by the respondent as being his.
20. A Division Bench of the Kerala High Court in Lillykutty v. Lawrance 2003 (2) DCR 610 relying on earlier judgment of the Division Bench in Gangadhar explained the law thus:
In the instant case, signature is admitted. According to the drawer of the cheque, amount and the name has been written not by the drawer but by somebody else or by the payee and tried to get it encashed. We are of the view, by putting the amount and the name there is no material alteration on the cheque under Section 87 of the Negotiable Instruments Act. In fact there is no alteration but only adding the amount and the date. There is no rule in banking business that payee's name as well as the amount should be written by drawer himself. In the instant case Bank has never found that the cheque was tampered with or forged or there is material alteration or that the handwriting by which the payee's name and the amount was written was differed. The Bank was willing to honour the cheques if sufficient funds were there in the account of the drawer even if the payee's name and the amount was written by somebody else other than the holder of the account or the drawer of the cheque. The mere fact that the payee's name and the amount shown are not in the handwriting of the drawer does not invalidate the cheque. No law provides in the case of cheques the entire body has to be written by the drawer only. What is material is the signature of the drawer and not the body of the instrument. Therefore when the drawer has issued the cheque whether the entire body was written by the drawer written beyond the instructions of the drawer, whether the amount is due or not, those and such matters are defenses which drawer has to raise and prove it. Therefore the mere fact that the payee's name and the amount shown in the cheque are in different handwriting is not a reason for not honouring the cheque by the Bank. Banks would normally see whether the instrument tis that of the drawer and the cheque has been signed by the drawer himself. The burden is therefore entirely on the drawer of the cheque to establish that the date, amount and the payee's name are written by somebody else without the knowledge and consent of the drawer. In the instant case, the drawer of the cheque has not discharged and burden. Apart from the interested testimony of the drawer, no independent evidence was adduced to discharge the burden.
7. Defendant had set up a case that the two cheques were taken away from her establishment. Burden is on here to show that the two cheques were taken away from her business premises. Apart from the intested testimony of the defendant there is no other independent evidence adduced to establish the story that cheques were stolen from her business premises. Defendant has not cared to examine any of the employees of the establishment. Counsel appearing for the defendant placed considerable reliance on the decision of this Court in Gandgadhara Panicker v. Haridasan 1989)2) KLT 730 and the contended that the presumption under Section 118 of the Act would arise only when there is a negotiable instrument which is admitted to have been executed. It is pointed out that when the fact of execution of the cheque itself is in dispute plaintiff has to prove also passing of consideration. In other words, only when due exe cution has been established presumption under Section 118 (a) can be raised. Reference was also made to the decision of the Mysore High Court in Gurubasappa v. Rudriah AIR 1969 Mys. 269. We are of the view, in a given case cheque is issued by the drawer in favor of the payee and the same is dishonoured by the drawer's Bank stating "funds insufficient", holder of the cheque is entitled to get the amount as reflected in the cheque since the cheque is a negotiable instrument as per Section 118. We are of the view under Section 118 of the Act until the contrary is proved presumption can be made that every negotiable instrument was made for consideration. The expression "until the contrary is proved" is relevant under Section 118 of the Negotiable Instrument Act. When the drawer of the cheque did not find any infirmity in the cheque presented by the payee presumption raised under Section 118 would apply unless the contrary is proved by the drawer of the cheque. Therefore mere fact that the payee's name and the amount shown in the cheque Is not in the handwriting of the drawer of the cheque that by itself is not a ground to contend that they are not validly issued or the cheques were not executed at all.
21. Respectfully following the aforementioned decision this Court is satisfied that the earlier order dated 8th March 2006 passed by the learned MM declining to refer the cheques in question for the opinion of the handwriting expert was valid and did not call for any review. The subsequent order dated 14th September 2006 passed by learned MM was in the circumstances not sustainable in law. It is accordingly hereby set aside.
22. The petition is allowed. The case be listed before the trial court on 17th March 2008 for directions. The learned MM will proceed to the next stage as expediously as possible.
23. A certified copy of this order be delivered to the trial court concerned within six days from today.
24. Order dusty to the counsel for the parties.