1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CR.MISC.PETITION NO.1913/2010 Smt. Vimla Devi Vs. State & Anr. Date of order : 27/10/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Ram Rakh Sharma for the petitioner. Shri Peeyush Kumar, PP for State. ****** REPORTABLE This criminal misc. petitioner u/s.482 Cr.P.C. has been filed by the accused- petitioner against the order of learned trial court dated 11.3.2010 whereby her application filed for second time u/s.311 Cr.P.C. to summon a private handwriting expert, has been rejected. As is evident from the impugned order, the complaint u/s.138 of the Negotiable Instruments Act was filed way back in the year 2004. Evidence of the complainant was closed on 22.9.07 and then from 26.10.07, matter was fixed for evidence of the defence. Prayer was made by the defence to adduce evidence on 1.12.07 and 23.1.08, that was allowed. The accused thereafter submitted two applications one u/s.91 of the Code of 2 Criminal Procedure and another u/s. 45 of the Evidence Act, which were allowed by the trial court by order dated 24.10.2008 and on her request, disputed cheques along with her admitted signatures, were sent to handwriting expert for comparison of the two signatures by order of the Court dated 29.5.09. Report of the Forensic Science Laboratory (FSL) was received on 18.7.2009. The accused-petitioner thereafter examined one Prakash Chand in evidence as DW-1 on 3.9.09. The accused petitioner then obtained a handwriting report of private expert and produced the same before the Court. She then filed yet another application on 9.9.09 praying that this private handwriting expert Renu Kumari should also be called in evidence of defence. The trial court by the impugned order has given last opportunity to the accused petitioner to produce the said handwriting expert or any other evidence in defence, which she might like to produce. It however declined the prayer for issuance of summon to that handwriting expert. Contention of the learned counsel for 3 the petitioner is that even though the report of the private handwriting expert was obtained by the accused-petitioner by making payment of fees to her, but she is not agreeable to appear before the Court on her request. It would be very necessary that summon be issued to that handwriting expert by the Court so that she can appear. Learned counsel submitted that if the said witness is not called in evidence, it would tantamount to denying fair opportunity of defence to the petitioner. The learned trial court as also the learned revisional court have committed serious error of law in rejecting application of the petitioner. Learned counsel in support of his arguments cited the judgement of Supreme Court in Hanuman Ram vs. State & Ors.-2009 (1) WLC (SC) Criminal 16, Kalyani Baskar vs. M.S. Sampoornam- I (2007) CCR 203 (SC) and judgement of this Court in Om Prakash Joshi vs. Radhey Shyam Bilochi-2006 (2) Cr.L.R. (Raj.) 957. Per contra Shri Peeyush Kumar, learned Public Prosecutor opposed the misc. petition 4 and argued that petitioner has been purposely delaying completion of trial. Matter is pending for recording her evidence in defence for last 3 years and the complaint was filed way back in the year 2004. Already earlier handwriting expert's report of the FSL of the Government requisitioned on application of the petitioner herself, is on record. Subsequent handwriting report of the private handwriting expert was submitted by the petitioner on her own and when she has herself paid fees to such expert, it was for her to produce the said expert. The Court was fully justified in declining such a prayer. But, at the same time, the Court has also granted one last opportunity to the accused-petitioner to produce this witness or any other witness on her own, if she wanted to do so. I have given my anxious consideration to rival submissions and perused the material on record. As already noticed above, this matter arises out of a complaint u/s. 138 of the 5 Negotiable Instruments Act, which was filed way back in the year 2004. Evidence of the complaint was closed on 22.9.07 and the matter is now pending for the evidence of the defence from 26.10.2007. From that date till now, three years have gone by and the petitioner is still asking for further time. The trial court allowed her earlier application filed u/s.91 Cr.P.C. read with Section 45 of the Evidence Act by order dated 24.10.2008 and it was on her request that the disputed cheques together with her admitted signatures were sent to the experts of the FSL on 29.5.2009 and report of the FSL has been received in the Court on 18.7.2009. The petitioner produced one witness Prakash Chand as DW-1 on 3.9.09. She then has herself produced the report of the private handwriting expert Renu Kumari. It was thereafter that she filed application on 9.9.09 requesting the Court to issue summon to her to appear as witness. Though the Court has rejected that request, but it has allowed opportunity to the petitioner to produce this witness or any other 6 witness/evidence in her defence and by impugned order dated 11.3.2010 and while granting last opportunity, the matter was posted for evidence of the defence on 16.4.2010. Against the backdrop of these facts, I have to consider whether these cited judgements need be applied to the fact situation obtaining herein. In Hanuman Ram, supra what was held by the Supreme Court, as evident from para 6 of the report, is that Section 311 of the Cr.P.C. consists of two parts. The word used in the first part is “may” and the second part uses the word “shall”. The first part gives purely discretionary authority to a Criminal Court and enables it at any stage of an enquiry, trial or proceeding to summon any one as a witness or examine any person in the Court or recall and re-examine any person whose evidence has already been recorded. Second part however is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to be essential for just decision of 7 the case. This is a supplementary provision enabling and imposing upon the Court by duty of examining a material witnesses, who would not be brought before it. In Kalyani Bhaskar, supra also what was held by the Supreme Court was that sending cheque for expert opinion to ascertain correctness and genuineness of appellant's signature appearing thereon, is a opportunity which should be extended to an accused. If that is denied, then that would tantamount to denying him fair trial. So far as the decision in Hanuman Ram, supra is concerned, from the facts of the present case, it would appear that even what mandatory part of the provision requires is that the Court has to take steps provided therein if new evidence is essential for just decision of the case. In the present case and similarly in Kalyani Baskar, supra what is held is that in order to ensure fair trial to the accused, if he demands sending of the cheques for expert opinion to check the correctness and genuineness of his 8 signatures, it would be necessary, because denial thereto would tantamount to denying him fair trial. In the present case already the Court on the request of the petitioner herself sent the cheques with her admitted signatures to the handwriting expert of FSL and their report has been obtained, which is on record. When another report that was procured at the instance of the petitioner is on record, insistence of the petitioner that the Court should again issue a notice to the private handwriting expert, whose opinion was obtained by the petitioner herself on payment of fees, cannot be appreciated because the Court has given option to the accused-petitioner to produce such expert and for that purpose, granted her opportunity to produce that witness Renu Kumari or any other witness or defence evidence. In spite of the fact that substantial time period had elapsed in evidence of the defence, the Court by passing the impugned order dated 11.3.2010 has still granted one more opportunity, albeit the last opportunity, to the accused 9 petitioner to produce her evidence. For all these reasons, the judgement of this Court in Om Prakash Joshi, supra also cannot have any application to the present case. I therefore do not find any merit in this misc. petition, which is accordingly dismissed. (MOHAMMAD RAFIQ), J. RS/-