IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.MMO No. 178 of 2011 Judgment reserved on : 28.10.2011. Date of decision: 23.11.2011. Devinder Kumar Sharma …. Petitioner. Versus Vikas Sood ...Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the Petitioner : Mr. B.S.Chauhan, Advocate. For the Respondent : Ms. Rita Goswami, Advocate. ______________________________________________________________ Kuldeep Singh Judge This petition under Section 482 Cr.P.C. has been filed for setting aside order dated 18.8.2011 passed by Judicial Magistrate 1st Class, Joginder Nagar in Case No. 28-III of 2009 titled Vikas Sood vs. Devinder Kumar and for allowing the application under Section 243 Cr.P.C. filed by the petitioner. 2. The facts, in brief, are that respondent has filed complaint against the petitioner under Section 138 of the Negotiable Instruments Act, 1881 on account of bouncing of cheque dated 14.9.2008 amounting to `.40,000/-. The trial Court took cognizance of the complaint and issued summons to the petitioner. The statements of _____________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 respondent and his two witnesses have been recorded. The statement of petitioner under Section 313 Cr.P.C. has also been recorded. 3. It has been contended that defence of the petitioner is that he issued a cheque favouring respondent of ` 4,000/- dated 14.9.2008 which was subsequently tampered by the respondent in both words and figure. The respondent tampered the cheque of ` 4,000/- to ` 40,000/-. The petitioner in order to open his defence moved an application under Section 243 Cr.P.C. for sending the disputed words “TY” and figure “0” after “4” and admitted handwriting of the respondent to the handwriting expert to take his assistance in order to decide the case effectively. The respondent contested the petition. The Court below dismissed the application on 18.8.2011, hence the petition. 4. The petition has been contested by the respondent by filing reply in which preliminary objections of maintainability, cheque in question was issued for payment due to respondent from petitioner inasmuch as on account of business transaction between respondent and petitioner, an amount of `.40,054/- was due and payable to the respondent from the petitioner. Therefore, petitioner issued cheque of ` 40,000/- to the respondent. The respondent before filing the complaint issued notice to the petitioner which was not replied. The petitioner is trying to mislead the Court by stating that the cheque is forged by doing some tampering. This is a concocted version of the petitioner. The filing of the petition is an abuse of the process of law. On merits, the respondent has denied the case of the petitioner. 5. I have heard the learned counsel for the parties. The learned counsel for the petitioner has relied Kalyani Baskar (Mrs.) vs. 3 M.S.Sampoornam (Mrs.) (2007) 2 SCC 258 and has submitted that facts in that case were quite close to the facts of the present case so far legal proposition regarding sending of cheque to the handwriting expert is concerned. He has submitted that the opinion of the handwriting expert will assist the trial Court in determining the actual dispute whether the cheque has been tampered or not. The learned counsel for the respondent has reiterated the stand taken by the respondent in the reply. It has been submitted that the application is not bonafide, it is vexatious and has been filed only to prolong the decision. 6. The Judicial Magistrate has observed that the respondent closed the evidence. The statement of petitioner was recorded on 21.7.2011. The case was fixed on 30.7.2011 for DWs but no steps were taken nor any DW was examined on the date fixed. Thereafter, the case was fixed on 4.8.2011 for DWs on self responsibility. On 4.8.2011, no DW was present. The petitioner filed an application under Section 243 Cr.P.C. for sending the cheque to handwriting expert to ascertain the genuineness of the handwriting. The trial Court has held that petitioner on 23.7.2011 made a written complaint to the police with the request to register the FIR against the respondent. It has been observed that notice was served on the petitioner but he did not reply to the notice. This is an act of admission on the point. It has been observed that object of the petitioner is vexation for causing delay in the criminal proceedings. The signatures on the cheque have not been disputed by the petitioner. He has disputed addition of ‘TY’ and ‘0’ to make the amount ` 40,000/-. It has been held that it is not mandatory that every disputed document must be sent to an expert for opinion and 4 from the naked eyes no overwriting or alteration in the cheque in question is seen. It has been held that the application is not maintainable and the same was dismissed. 7. Kalyani Baskar (supra) is also a case under Section 138 of the Negotiable Instruments Act, 1881. In that case ,accused filed an application under Section 245 Cr.P.C. after putting appearance which was dismissed on the ground that genuineness of the signature could be questioned only at the time of trial. The accused during trial preferred an application under Section 243 Cr.P.C., requesting the Magistrate to send the cheque in question for expert opinion to ascertain the correctness and genuineness of the appellant’s signature appearing thereon. The Magistrate dismissed the application on the ground that it was not mandatory that every disputed document or signature has to be sent to an expert for opinion. The revision filed in the High Court was also dismissed which was assailed before the Supreme Court. The Supreme Court has held as follows: “Section 243(2) is clear that a Magistrate holding an inquiry under Cr.P.C. 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 5 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 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 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. The Supreme Court has held that Section 243 (2) Cr.P.C. refers to a stage when the prosecution closes its evidence and the accused has entered upon his defence. In that case, the Magistrate had dismissed the application that it was not mandatory that every disputed document or signature has to be sent to an expert for opinion which was upheld by the High Court but was not approved by the Supreme Court. In the present case also the Magistrate has dismissed the application on the ground that it is not mandatory that every disputed document must be sent to an expert for opinion. The Court below has observed that the application is vexatious and has been filed to cause the delay. 6 9. In the present case the statement of petitioner was recorded under Section 313 Cr.P.C. on 21.7.2011 and the case was listed first time for defence evidence on 30.7.2011. The application under Section 243 Cr.P.C. was filed by the petitioner on 4.8.2011. It is not understandable how in these circumstances the petitioner has caused delay in the case when he filed an application under Section 243 Cr.P.C. within five days from entering the defence. In case some time is consumed for obtaining the opinion of the expert that cannot be attributed to petitioner for causing the delay. It is the right of the petitioner which is available to him under Section 243 Cr.P.C. The petitioner has taken specific stand that figure ‘0’ and words ‘TY’ have been added and the cheque has been tampered by the respondent after issuance of the cheque. These allegations cannot be answered by the Magistrate just by looking the cheque with naked eyes, it requires expert opinion. The Magistrate has not recorded a finding that ex-facie there is no tampering of the cheque as alleged by the petitioner nor there is a finding that application is totally false and baseless. In these circumstances, the order dated 18.8.2011 passed by Judicial Magistrate 1st Class, Joginder Nagar in case No. 28-III of 2009 is not sustainable. The application filed by the petitioner under Section 243 Cr.P.C. deserves to be allowed. 10. In view of above discussion, the petition is allowed, order dated 18.8.2011 passed by Judicial Magistrate 1st Class, Joginder Nagar in case No. 28-III of 2009 is set-aside, application filed by petitioner under Section 243 Cr.P.C. in the Court below is allowed. The Court below is directed to take appropriate steps for obtaining the report 7 of handwriting expert on the point whether figure ‘0’ and words ‘TY’ on the cheque have been added lateron by the respondent as alleged by the petitioner and shall proceed with the trial in accordance with law. The petition stands disposed of on above terms. In view of disposal of the main petition, Cr.MP No. 720 of 2011 is also disposed of. The parties through their counsel are directed to appear before the Court below on 08.12.2011. November 23, 2011 . ( Kuldip Singh ) (GR) Judge.