IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:3.7.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.289 of 2007 Muniraj ... Petitioner/Accused vs. Velu ... Respondent/Complainant Petition filed under Section 397 r/w 401 of Cr.P.C. against the order dated 18.10.2006 passed by the Judicial Magistrate No.III, Vellore in Crl.M.P.No.3047 of 2006 in C.C.No.3 of 2002. For Petitioner : Mr.K.Mariappan For Respondent : No appearance O R D E R Animadverting upon the order dated 18.10.2006 passed by the Judicial Magistrate No.III, Vellore, this criminal revision case is focussed. 2. A 'resume' of facts which are absolutely necessary and germane for the disposal of this criminal revision case would run thus: (a) The respondent herein filed the complaint in C.C.No.3 of 2002 as against the revision petitioner herein for the offence under Section 138 of the Negotiable Instruments Act. After entering appearance in the said case, the revision petitioner herein/accused pleaded not guilty. Whereupon trial commenced and the prosecution closed their side. (b) When the matter was posted for defence side, the revision petitioner/accused filed Crl.M.P.No.3047 of 2006 praying the Court to send the impugned cheque to the hand writing expert to obtain the opinion of the expert relating to the genuineness of the purported signature of the accused. However, the Magistrate dismissed the application. 3. Being aggrieved by and dis-satisfied with the said order, this revision is focussed on various grounds, the pith and marrow of them would run thus: https://hcservices.ecourts.gov.in/hcservices/ The lower Court ignoring the well settled proposition of law that the defence should be given due opportunity to prove the defence plea, even by having a handwriting expert's assistance, dismissed the application filed by the revision petitioner/accused. 4. At the hearing on the respondent's side there is no representation. The respondent also is called absent. However, the learned counsel for the revision petitioner would reiterate the grounds of revision and pray for setting aside the order of the lower Court and for allowing the Crl.M.P.No.3047 of 2006. 5. The point for consideration is as to whether there is any perversity or non-application of law in disposing of the criminal M.P. 6. The learned counsel for the revision petitioner appropriately and appositely cited the decision of the Honourable Apex Court reported in JT 2007(1) SC 77 – KALYANI BASKAR V. M.S.SAMPORNAM, an excerpt from it would run thus: "12. 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, https://hcservices.ecourts.gov.in/hcservices/ 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."(emphasis supplied) 7. A bare perusal of the above judgement would reveal that a genuine prayer of an accused should not be rejected simply because there is delay in making such prayer for taking the hand writing expert's assistance. 8. In this case, the learned counsel for the revision petitioner would appropriately and correctly, appositely and convincingly submit that from the beginning the revision petitioner/accused has been contending that the purported signature of the accused is a forged one. No doubt, the lower Court adverted to the fact that for several years the accused kept quite. I am also of the view that the accused could have been diligent enough in filing that application. Nevertheless I am of the view that in as much as there are no prevaricative stands on the part of the accused relating to his plea, one more opportunity could be given to him, stipulating certain conditions. 9. Hence, the order dated 18.10.2006 passed by the Judicial Magistrate No.III, Vellore, in Crl.M.P.No.3047 of 2006 in C.C.No.3 of 2002 is set aside, by allowing this criminal revision case subject to the following terms and conditions: 10. At the first instance, the petitioner/accused shall secure before the Court his own one or two anti litem motum signatures, so to say his authentic signatures found in some public records within 20 days from the date of receipt of copy of this order; whereupon, the lower Court shall appoint an Advocate Commissioner for the following purpose. (a) To carry the relevant documents in connection with this case personally in a sealed cover; (b) and produce the same before the Forensic Expert; (c) leave it in his custody under his acknowledgement for as many days as the Forensic Expert may require; https://hcservices.ecourts.gov.in/hcservices/ (d) collect the record from the Forensic Expert on the day as may be fixed by him; (e) bring it back and lodge it with the Court." The Forensic Expert is directed to complete the examination in any event, within 48 hours after the depositing of the same by the Advocate Commissioner with him. 11. The criminal revision case is allowed. Consequently, connected miscellaneous petitions are closed. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar msk To 1.The Judicial Magistrate No.III, Vellore 2.-do- Thro' The Chief Judicial Magistrate, Vellore. +1 cc to Mr.K.Maraiappan, Advocate, SR.No.29050 Crl.R.C.No.289 of 2007 KSK {CO} TP/14.7.2009. https://hcservices.ecourts.gov.in/hcservices/