HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL PETITION No.4196 of 2009 DATED:10.08.2009 Between: K.Babu Rao Murali Mohan .. Petitioner And The State of Andhra Pradesh, rep., by its Public Prosecutor, High court of Andhra Pradesh, Hyderabad and another .. Respondents HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL PETITION No.4196 of 2009 ORDER: Heard Sri P.Krishna Prakash, learned counsel for the petitioner, Sri S.Shyam Sunder Rao, learned counsel for the second respondent and Sri K.Dhananjaya, learned Additional Public Prosecutor for the first respondent. This Criminal Petition has been filed being aggrieved by the order in Crl.M.P.No.329 of 2009 in C.C.No.350 of 2008 on the file of the XV Additional Judge-cum-XIX Additional Chief Metropolitan Magistrate, Hyderabad, dated 30.03.2009 confirmed in R.P.No.51 of 2009 on 13.05.2009 by the Metropolitan Sessions Judge, Hyderabad. The Criminal Miscellaneous Petition was filed contending that the complainant obtained a partly filled up cheque from the petitioner/accused for the purposes of security, and later, the complainant filled up the gaps in the cheque, as per his whims and fancies, and presented it to the bank for the purpose of recovery of a legally enforceable debt. The accused therefore, desires that the gaps filled up with reference to the date of the cheque, the amount of the cheque in figures and the amount of cheque in words be examined by a handwriting expert for comparing the said handwritings with the admitted handwritings of the accused and the signature in the cheque. The accused also brought to notice that during cross examination of the complainant, it was specifically claimed that the cheque was filled up by the accused only, which was not correct. The learned Magistrate, in the order referred to the claim of the accused and based on the contents of the complaint stated that the cheque need not be sent to any expert, as the accused admitted the issuance of the cheque, and if there is any dispute about the contents of the cheque, the Bank Manager himself can be summoned and examined. The learned Magistrate had stated that there is no necessity for sending the documents to know the author of the disputed handwritings in the disputed cheque, when the matter is posted for arguments and when the case is not one of a material alteration or forgery or fabrication. The learned Metropolitan Sessions Judge in the Revision Petition also opined that as there was no dispute that the cheque contains the signature of the accused and the Banker of the accused also did not return the cheque on the ground that the signature of the accused was not tallying, there was no need for sending the cheque for the opinion and report of any handwriting expert. The learned Metropolitan Sessions Judge referred to Manda Syamsundar V. Kurella Anjaneyachari[1] wherein it is stated that the absence of any objection by the banker against the genuineness of the signature on the cheque was held sufficient to show that cheque was not fabricated. The petitioner contends that he never disputed the signature on the cheque, which he claims to have given by way of a security, but only claiming that the blanks in the cheque were not filled up by him, contrary to which, PW.1 claims that the accused himself filled up all the blanks in the cheque. In order to probablise his defence about his not filling up the contents of the cheque given as security, it is necessary in the interests of justice to send the cheque for examination of a handwriting expert for comparison with the admitted handwritings of the petitioner. In the counter-affidavit herein also the second respondent/complainant reiterated the same contention that when the signature on the cheque is admitted and the banker did not raise any objection, it is sufficient to show that cheque was not fabricated. The trial Court and the revisional Court appear to have misunderstood the purpose for which the petitioner sought for referring the document to a handwriting expert. It is true that in Manda Syamsundar’s case (referred to above) relied on by the second respondent herein also, the learned Judge held that as the cheque was not returned on the ground that the signature is not tallying, no purpose would be served by sending the document to the handwriting expert. However, it should be seen that the defence, in that case, by the accused was one of disputing the signature on the cheuqe itself, but here the accused is admitting the signature, but disputing the contents of the cheque. Learned counsel for the petitioner relied on M.S.Narayana Menon Alias Mani V. State of Kerala and another[2] wherein it was pointed out that, if a cheque is issued for security or for any other purpose, but not for discharging a legally enforceable debt, it did not come within the purview of Section 138 of the Negotiable Instruments Act. The learned counsel, therefore, contended that if they are able to probablise that the cheque was issued by way of a security, the prosecution under Section 138 of the Negotiable Instruments Act, against him, cannot be sustained and the said plea of the learned counsel for the petitioner is but plausible and acceptable. While any expression of opinion on the merits of the rival contentions about the subject matter of the crime is not appropriate in this summary enquiry, when the dispute between the parties is whether the contents of the subject cheque were filled up by the accused or not, which would have a significant bearing on the further question whether the cheque was issued by way of security or towards a legally enforceable debt, though the signature on the cheque by the accused is admitted, examination of this cheque by a handwriting expert for throwing light on whether the contents of the cheque were in the handwriting of the accused or not, cannot be considered to be irrelevant or unnecessary. Since, the criminal liability, if proved, would impose on the accused serious penal consequences, the accused should be given every opportunity to probablise his defence and the trial Court and the revisional Court appear to have been persuaded to reject the request of the accused more because of the request being made at the fag end of the trial, at the stage of arguments, and also because of an impression that the request for sending the document to a handwriting expert is for comparison of the signature of the accused on the cheque. Under the circumstances, the inherent jurisdiction of this Court should be exercised in favour of considering the request of the accused, but in view of the abnormal delay by the accused in approaching the trial Court with the request, the inconvenience caused to the complainant can be sufficiently compensated by directing the petitioner/accused to bear the expenses of the handwriting expert, irrespective of the result of the criminal case. Accordingly, the order in Crl.M.P.No.329 of 2009 in C.C.No.350 of 2009, dated 30.03.2009 on the file of the XV Additional Judge-cum- XIX Additional Chief Metropolitan Magistrate, Hyderabad as confirmed in R.P.No.51 of 2009 on the file of the Metropolitan Sessions Judge, Hyderabad on 13.05.2009 is set aside and the said Crl.M.P.No.329 of 2009 is allowed, subject to the petitioner/accused bearing the expenses of the handwriting expert for making comparison of the handwritings, as requested, irrespective of the result of the criminal case. The Criminal Petition is ordered accordingly. _____________________ G. BHAVANI PRASAD, J 10th August 2009 KH [1] 2008 (2) ALD (Crl.) 349 [2] (2006) 3 Supreme Court Cases (Cri) 30