^JrinJ.^ P^l^<r-':l^ :s BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.) Cr.M.P.No. 1'}^ of 2011 PETITIONER RESPONDENT VERSUS ,\^...- ^.>< L'.'*" ..•' ...y" .^^,.-"'" (f' i-jui lyciiv/vv, \'w-''"'.'i'vf"''^y"^\^..^- Station-Civil L t^"' "...••••""^%Sr Biiaspur^C:G.) Nitin KumarSahu, S/o Ramlal Sahu, aged about 24 years, R/o House No. 379/2 ^Sankari, ^(lice Station-Sankari, Tahsil-Takhatpury^: District-Bilaspur (C.G.) Mangal Singh Thakur, S/o Devi Singh, aged about 32 years, R/o Quarter No. H-2/1, Behind ChiefJustice Bungalow, 27 Kholi, Bilaspur, Police Statjon-Civil Line, Bilaspur, District- PETITION UNDER SECTIO^N 482 OF CRIMINAL PROCEDURE CODE HIGH COURT OF CHHATTISGARH : BILASPUR Cr.M.P.N0.178 of 2011 Petitloner Nitin Kumar Sahu Versus Respondent Mangal Singh Thakur (Petition underSection 482 ofthe Criminal Procedure Code) Single Bench: Hon'ble Shri Manindra Mohan Shrivastava, J. Present: - Shri Goutam Khetrapal, Advocate for the petitioner. Shri Praveen Tulsyan, counsel for respondent. ORDER (ORAU (Passed on this 29th day of July, 2011) Heard. 2. This petition has been filed by the petitioner aggrieved by order dated 05-03-2011 passed by the 3 Additional Sessions Judge, Bilaspur, in Criminal Revision No.36/2011, whereby order dated 09-02-2011 passed by the Judicial Magistrate First Class, Bilaspur in Complaint Case No.1321/2010, has been affirmed. 3. Alleging CQmmission of offence under Section 138 of the Negotiable Instruments Act, 1881 (In short "the AQ+ of 1881"), the respondent preferred a complaint before the Magistrate. After the complainant's witnesses were examined, the petitioner moved an application under Section 45 of the Indian Evidence Act, 1872 (In short "the Act of 1872") for sending the questioned document i.e. cheque for opinion of the Handwriting expert. The application of the petitioner was rejected by the learned trial Court holding that in view of the provisionscontained in Section 20 of the Act of 1881 and the petitioner having admitted his signature in the cheque, it is not necessary to obtain the opinion of the Handwriting Expert. The case was listed for recording evidence in defence on 15-02-2011. On that day, the counselappearing on behalf of the petitioner stated that the petitioner does not wish to lead any evideiice, but moved an application -w f-.,. (!**, *".EEs«"i<3< ,\ £ i9sV i- ^ under Section 309 of the Cr.P.C. for grant of time by stating that the petitioner intends to file revision against the order dated 09-02-2011. However, the said application was rejected. Aggrieved by the order dated 09-02-2011 , the petitioner preferred a revision before the Revisiona] Court. The revision preferred by the petitioner has also been rejected by the learned Revisional Court upholding the reasons assigned by the learned trial Court that in view of the provision contained in Section 20 of the Act of 1881, as the petitioner himself admitted his signatures, he is not entitled to pray for calling opinion from the Handwriting Expert. Against the rejection of the dismissal of the revision petition, this petition under Section 482 of the Cr.P.C. has been preferred. 4. Learned counsel for the petitioner argued that the petitioner is facing trial for alleged commission of offence under ^ection 138 of the Act of 1881 and in the event, the petitioner is found guilty of commission of offence under the law, he is liable to be punished with imprisonment for a term, which may extend to two years or with fine, therefore, the consequences are grave. Learned counsel submitted that it has been the defence of the petitioner that the cheque was handed over to the respondent only as asecurity and not towards discharge of any debt/liability and blank document was given. At the first available opportunity, this defence ofthe petitioner is reflected from the suggestions, which were given to the complainant during his cross-examination by the petitioner. Learned counsel for the petitioner further submits that in his application under Section 45 of the Act of 1 872, this aspect was specifically dealt with and it was stated that in order to effectively defend himself, it is necessary to examine the veracity and genuineness of the cheque warranting opinion of the Handwriting Expert. He further submitted that the Court below have illegally rejected the petitioner's application by completely misconstruing the intent and purport of the provisions contained in Section 20 of the Act of 1881, which does not in any manner restrict the power of the Court as also the maintainability of application under Section 45 :\ -3 of the Act of 1872 for calling an expert opinion. In support of his submission, tearned counsel for the petitioner relies upon the decision of the Supreme Court in the case of Kalyani Baskar (MRS.) Versus M. S. Sampoornam, (2007) 2 Supreme Court Cases 258. Learned counsel further submitted that as the application under Section 45 of the Act of 1872 was rejected, there was no other defence available, therefore, in that light, the petitioner closed his defence evidence, but that does not disentitled or operate against the petitioner or otherwise bars challenge tothe legality and validity of order dated 09-02-2011 passed by the Magistrate and order passed in revision. He submits that in case, the petitioner's application is allowed, the petitioner will have an opportunity to pray for examination of Handwriting Expert or any other witness because the Court has ample power under Section 311 ofthe Cr.P.C. to examine the witness at any time before the judgment is pronounced. 5. On the other hand, learned counsel for the respondent submitted that the application of the petitioner has been rightly rejected. He submits that the petitioner having closed his defence evidence, he is not entitled to question the legality and validity of order dated 09-02-2011. Learned counsel for the respondent submits that in other criminal case between the same parties, based on same allegation relating to commission of offence under Section 138 of the Act of 1881, when the application of the petitioner under Section 45 of the Act of 1872 was rejected, the petitioner approached this Court by filing petition under Section482 of the Cr.P.C., but that petition was dismissed by this Court vide order dated 10-03-2011 in Cr.M.P.No.128 of 2011 on that ground that the petitioner has closed his defence and the case is listed for final arguments. It is nexf contended by learned counsel for the respondent that in view of the provisions contained in Section 20 of the Act of 1881, the petitioner having admitted his signatures, the petitioner could not subsequently turn around to ^^s&&?! ^ ";i--y •-^.-sf' ~/) dispute the genuinity of the document by making such application for examination of the document and opinion of Handwriting Expert. 6. The petitioner is being prosecuted for alleged commission of offence under Section 138 of the Act of 1881. Section 138 of the Act of 1881, a panel provision, provides for punishment up to two years with fine, in case, it is found that the cheque drawn by a person in discharge of his liabilities has been dishonoured. Therefore, consequences of criminal proceedings are serious and grave. In the cross-examination of the complainant, various suggestions have been recorded in para 14, 19, 20 & 21, wherein it has been suggested that a blank cheque without any entries made, was handed over to the complainant as a matter of security and it was not intended to be drawn in discharge of any existing debt or liability. The evidence of the complainant was closed on 03-02-2011 and on 08-02-2011, the petitioner moved an application under Section 45 of the Act of 1872. In the application, the' petitioner has stated that in the light of the evidence of the complainant and the specific case of the petitioner that he has only signed the document and other contents of the document are not made by the .petitioner, it is necessary to call for a report of the Handwriting Expert. The application on the face of it, could not be said to be 'acking bonafide or otherwise intended to protract the trial. The contents of the application discloses that the petitioner intended to take defence that the cheque in question was only signed by him and it was blank and it was handed over as a matter of security without there being any intention that the same be used for drawing any amount much less in discharge of any existing debt/liability. Moreover, the application was made promptly, because the evidence of the complainant was closed on 03-02-2011, the petitioner moved an application on 08-02-2011. The aforesaid application, however, has been rejected by the learned Court below by holding that in view ofthe provisions contained in Section 20 ofthe Act of 1881, the application is liable to be rejected. The provisions contained in Section 20 of 5~- the Act of 1881 contemplate that where an incomplete stamp is handed over or signed or delivered to another person, it gives prima facie authority to the holder 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 and further that 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. However, in a criminal proceeding, where the accused intends to either develop; raise defence or dispute the genuinity of the document with regard to the entries made thereunder, Section 20 of the Act of 1881 does not create any bar nor it takes away the right of the accused to call for an opinion of the Handwriting Expert, in appropriate cases, depending upon the facts and circumstances of that case. Moreover, reading of Section 20 of the Act of 1881 shows that incomplete stamp signed and delivered is only prima facie authority to the holder to make or complete negotiable for any amount specified in the stamp and not exceeding the amount covered by the stamp. Whether the cheque was only signed by the petitioner-accused or the amount was also written by him, it is a matter of enquiry and in view of what has been stated by the petitioner in his application under Section 45 of the Act of 1872, provision of Section 20 do not come in the way of the petitioner-accused in praying the Court for calling opinion of a Handwriting Expert. In the Opinion of this Court, the Courts below have completely misconstrued the scope and purport of the Section 20 of the Act of 1881. The only reason assigned towards rejection of application ofthe petitioner- accused under Section 45 of the Act of 1872, is based upon the reading of Section 20 of the Act of 1881. No other reasons have been assigned by the Court below to reject the application. 7. In the case of Kalyani Baskar (Mrs.) (supra), the Supreme Court has authoritatively pronounced the guidelines in the matter of considering -£, applications for sending the cheque in question for opinion of the Handwriting Expert. Itwas held: "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 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 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. 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 CrPC 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) CrPC 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 handwriting 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." 8. Therefore, the Court below have clearly acted illegally in rejecting the petitioner's application on irrelevant considerations by misconstruing the provisions contained in Section 20 of the Act of 1881. Learned counsel for the respondent has placed reliance upon the order dated 10-03-2010 passed by this Court in Cr.M.P.128 of 2010. l find that the petition under Section 482 of the Cr.P.C. was dismissed at the motion stage itself. The petitioner having suffered the order of rejection of his application under Section 45 of the Act of 1872, decided to close his evidence. However, in the case in hand, the petitioner also sought adjoumment by moving application under Section 309 of the Cr.P.C. on the ground that he intends to file revision petition against order dated 09-02- 2011. Therefore, under these circumstances, it cannot be said that the petitioner having closed his evidence, waived his right or otherwise, is estopped from challenging legality and validity of order dated 09-02-2011. The right of a accused to take all the steps for production of oral and documentary evidence to defend him from the criminal charges is a matter of right and such right could not be denied to him on the ground that after rejection of application under Section 45 of the Act of 1872, he closed his defence. All these aspects of the matter were not submitted before the Court in Cr.M.P.No.128 of 2010, and therefore, the Court has no occasion to examine various aspects of the matter. In this view of the matter, 1 am not inclined to accept the submission made by learned counsel for the respondent that the case of the petitioner should also meet the same fate as has been held in the case ofCr.M.P.No.128 of 2010. 9. In the result, the orders passed by the Court below are set aside. The application filed by the petitioner under Section 45 of the Act of 1872 is allowed. \J[6 The learned trial Court shall take necessary steps for examination of the questioned document. Petition is accordingly allowed. 10. It is made clear that whatever observations made by this Court are only with regard to the scheme of provisions contained in Section 20 of the Act of 1881 and right of the accused to lead evidence and do not in any manner pronounce upon the case of the prosecution or defence. The trial Court shall pass appropriate order without influenced by the observations made by this Court. This Court records valuable assistance rendered by Shri P. K. C. Tiwari, Senior Advocate. Sd/- Manindra Mohan Shrivastava Judge Tumane