1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR 1. S.B. Criminal Misc. Petition No. 2603/2009 Ram Gopal Agarwal Vs. Ramesh Kumar Parwal 2. S.B. Criminal Misc. Petition No.2684/2009 Jagdeep Sharma Vs. Dr. Murari Lal Sharma 3. S.B. Criminal Misc. Petition No.2656/2009 Sushil Agarwal Vs. Ashok Pareek 4. S.B. Criminal Misc. Petition No.2581/2009 Anuj K. Sanghi & Anr. Pankaj Trivedi Date of Order :: 3rd February, 2010 HON'BLE MR. JUSTICE M.N. BHANDARI Dr.P.C. Jain ] Mr.Sudhir Jain ] Mr.Mohammed Anees ] for petitioners. Mr.Ajay Gupta ] Mr. G.S. Fauzdar, PP for State. ***** BY THE COURT: Since a common question of law is involved in these criminal miscellaneous petitions, thus same are decided by this common judgment. For the convenience, the facts of each case are narrated separately, as under:- 1. S.B. Criminal Misc. Petition No. 2656/2009 – in this case, the petitioner moved an application under 2 Section 45 of the Evidence Act. It was stated that cheque was not issued under one handwriting and ink, thus needs to be sent for FSL/handwriting expert for their opinion. The application aforesaid was rejected by the trial Court. A revision petition was filed against the order and it was urged that pursuant to Section 73 of the Evidence Act and Section 243(2) of the Criminal Procedure Code (for short 'the Cr.P.C.), petitioner is entitled to seek an expert opinion being his valuable right of defence. The revision petition was rejected after taking note of all the issues and also referring to the fact that matter under Section 138 of the Negotiable Instruments Ac is pending for last six years, though as per the provisions of Section 143 of the aforesaid Act, matter should have been decided within a period of six months. Taking note of the proceedings of the matter, revisional Court came to the conclusion that petitioner never questioned handwriting of the cheque by different person or under different bank while the complainant was cross- examined. Aggrieved by the order passed by the revisional Court, petition under Section 482 Cr.P.C. has been preferred. 2. S.B. Criminal Misc. Petition No. 2581 – In this 3 case also, the application under Section 45 of the Evidence Act was moved by the petitioner, which was then rejected by the trial Court. It was alleged that the cheque containing date, name and amount has been altered and in fact, no cheque was issued for payment, but was given only as surety. Learned Court below looked into the fact and taking note of the cheque, prima facie was formed opined that cheque containing the date is being altered by the accused petitioner. It as also noticed that while reply to the notice under Section 138 of the Negotiable Instruments Act was given, denial of issuing the cheque was not made, only contention was that cheque was issued toward surety and accordingly application was rejected. Copy of the order of cognizance has also been filed but prayer clause does not make a prayer for quashing of the order of cognizance though a prayer has been made to quash and set set the proceedings. At this stage, it is necessary to clarify that an order taking cognizance is not an interlocutory order, thus a revision petition lies against the said order, hence, a petition under Section 482 Cr.P.C. is not even maintainable for that purpose. 3. S.B. Criminal Misc. Petition No.2684/2009 – In 4 this case also, petitioner moved an application under Section 243(2) Cr.P.C. making a prayer that life of the ink on the cheque is required to be investigated, thus matter needs to be referred to the expert. The application was rejected by the trial Court vide its order dated 6.8.2009. The petitioner preferred a revision petition. The petitioner had came with the plea that cheque was issued towards security and in view of the aforesaid, learned revisional Court came to the conclusion that cheque is not required to be sent to the FSL to judge age of the ink. Once the petitioner stated that cheque was issued towards security other plea became irrelevant and accordingly, revision petition was rejected. 4. S.B. Criminal Misc. Petition No. 2581/2009 – In this case, petitioner moved an application under Sections 45 and 73 of the Evidence Act with a prayer that the cheque should be sent to handwriting expert. It was alleged that the cheque was not signed or issued to the complainant, thus it contains fraudulent signature as well as writing, thus needs to be examined by the FSL. Learned Court below came to the prima facie conclusion that if cheque was stolen or fraudulently taken, then why 5 the report was not made. Even when notice under Section 138 of the Negotiable Instruments Act was given, it was not replied containing the fact that cheque is fraudulently taken and filled by the complainant. The petitioner had even sought various dates to cross- examine the complainant's witnesses and when lastly cost was imposed, application under Sections 45 & 73 of the Evidence Act was moved, thus said application was not considered to be bonafide. No revision petition against the said order was filed. All the aforesaid matters pertain to a matter initiated under Section 138 of the Negotiable Instruments Act and the question came up for consideration before this Court is as to whether petitioners are having a right to seek an expert opinion from FSL/handwriting expert. Learned counsel for petitioners submitted that the aforesaid issue came up for consideration before the Hon'ble Apex Court in the case of Kalyani Baskar Vs. M.S. Samporam reported in 2007 (1) WLC (SC) Cr. 239. In the aforesaid case, Hon'ble Apex Court allowed the appeal holding that the appellant therein was having a right of fair trial. To rebut the case of the complainant, 6 the opinion of handwriting expert should have been obtained. In the aforesaid case, immediately on appearance before the Magistrate, accused filed an application containing the fact that cheques were not signed or issued to the complainant, thus looking to the denial of the signature on the cheques, later on prayed that cheques may be sent to the handwriting expert. The petitioner has further relied upon the judgment in the case of T. Nagappa Vs. Y.R. Murlidhar reported in (2008) 5 SCC 633. In the aforesaid case also, it was held that the cheques were signed in the year 1999 and thereupon they have been filled up in the month of August, October and December 2004, thus age of the signatures is required to be examined by the FSL. The Hon'ble Apex Court allowed the appeal on the ground that the accused has a right of fair trial. The judgment of this Court in the case of Mahaveer Prasad Sarraf Vs. Devendra Kumar Sharma & Anr. reported in 2009 WLC (Raj.) UC 710 has also been relied upon. A petition was allowed therein after referring two judgments of the Hon'ble Apex Court referred to above. It is further argued that as per Section 45, 73 and 114 of the Evidence Act, handwriting expert's opinion can 7 be called by the Court though the Court itself is having power to come to its own conclusion. It is, however, urged that in various judgments of the Hon'ble Apex Court, it is held that the Court should be slow in recording its opinion. Reference of the judgment in the case of State of Maharashtra Vs. Sukhdev Singh @ Sukha & others reported in AIR 1992 SC 2100 and in the case of Murarilal Vs. State of M.P. reported in AIR 1980 SC 531 has been given. A further reference of a judgment in the case of Thiruvengada Pillai Vs. Navanethammal & Anr. reported in 2008 (1) WLC (SC) Civil 697 has also been given. In the aforesaid case also, it was held that the Court is having authority to compare the disputed handwriting/signature/finger impression with the admitted handwriting/signature/finger impression without assistance of the expert, but it is considered to be hazardous and risky. Prayer of the learned counsel for parties is, accordingly, to allow all the petitions. I have considered the submissions of learned counsel for parties and perused the record carefully. Before coming to the facts of each case, it is 8 necessary to look into the legal issues raised by learned counsel for parties. In the case of Kalyani Baskar (supra) and also in the case of T. Nagappa (supra), the Hon'ble Supreme Court considered the provisions of Section 243 (2) of Cr.P.C. along with Article 21 of the Constitution and came to the conclusion that fair trial demands full opportunity of defence to the accused and after taking note of the facts of the case, appeals were allowed. In Para 9 of T. Nagappa's case (supra), it was held thus:- “9. What should be the nature of evidence is not a matter which should be left only to the discretion of the court. It is the accused who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused in terms of sub-section (2) of Section 243 of the Code is bona fide or not whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses, etc. If permitted to do so, steps therefore, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant.” Perusal of the aforesaid para shows that the Court being the master of the proceedings must determine as 9 to whether application filed by the accused is bonafide or not. In the case of Kalyani Baskar also denial of the signatures on the cheques was raised at the initial stage by way of preliminary objections. The cheque therein was dishonoured due to insufficient fund. The Officer of the bank was examined as PW-3, who then deposed that he has not verified the signatures before returning the cheque. The appellant therein immediately moved an application for seeking opinion of the handwriting expert. In the aforesaid background, appeal was allowed considering the fact that the appellant therein is having right of fair trial. The view of this High Court in the case of Mahaveer Prasad Sarraf (supra) is based on the aforesaid judgments of the Hon'ble Supreme Court. It is no doubt that Section 243(2) Cr.P.C. gives a right to the accused, however, in view of the judgment of the Hon'ble Apex Court in the case of T. Nagappa (supra) and specifically Para 9 therein clarifies the position that it is discretion of the Magistrate to look into the relevant material and passed appropriate order. As and when discretion is given to the Court, it has to be exercised judiciously and not arbitrarily. Looking to T. Nagappa's case, as and when application is moved pursuant to 10 Sections 45 & 73 of the Evidence Act read with Section 243 Cr.P.C., the Magistrate is under an obligation to exercise its jurisdiction judiciously to see that a proper and fair opportunity of defence is given to the accused. While doing the so, the Court should bear in mind its own jurisdiction under Sections 45 & 73 of the Evidence Act. Section 73 of the Evidence Act is quoted hereunder:- “73. Comparison of signature, writing or seal with others admitted or proved - In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which s to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section applies also with any necessary modifications, to finger-impressions.” Perusal of the aforesaid provision shows that it is not always necessary to send the cheque for FSL or handwriting expert's opinion when the Court itself is in a 11 position to draw its conclusion. It is only when such conclusion cannot be drawn safely, better to seek an expert opinion. In the recent judgment of Thiruvengada Pillai (supra), the Hon'ble Apex Court considered the aforesaid aspect in reference to Sections 45 & 73 of the Evidence Act and referring to the case of Murari Lal Vs. State of Madhya Pradesh reported in 1980 (1) SCC 704, held that in what cases, the trial Court can venture on the issue of recording its own opinion. The view aforesaid in the case of Murari Lal (supra) was reiterated in the case of Lalit Popli Vs. Canara Bank & Ors. reported in JT 2003(5) SC 494 also. In these cases as well as in the cases of Murari Lal Vs. State of Madhya Pradesh and State of Maharashtra Vs. Sukhdeo Singh (supra) the provision of Section 73 of the Evidence Act was considered elaborately. In view of aforesaid, the cases are divided in two sets; one in which an expert opinion has been sought by the Court at the instance of both the parties or one party, the Court has to draw its own opinion thereafter and in another set of cases, no expert opinion was sought by the party, the Court can record its own opinion after comparing two writings/signature. In all cases, ultimate conclusion has to be drawn by the Court after taking note of the corroborative evidence with 12 that of the opinion of the handwriting expert. Thus, in the cases where handwriting expert's opinion is sought, it may not be accepted without corroborative piece of evidence. Looking to the aforesaid, as and when application under Sections 45 and 73 of the Evidence Act and 243(2) of the Act is filed by the accused, the trial Court is under an obligation to decide the application taking note of the aforesaid legal position. Since discretion vests in the trial Court, it should be exercised judiciously. The endeavour of the Court should be to give fair opportunity of trial to the accused but if the application is not bonafide and is to delay the proceedings, the Court is having ample power to reject the same. The judgment in the case of Kalyani Baskar (supra) and T. Nagappa (supra) does not mandate that in all the cases opinion of the expert should be sought. In fact, if such a proposition is accepted, then Sections 45 & 73 of the Evidence Act will become redundant. Taking aforesaid legal position, the trial Court should decide the application. Section 45 of the Evidence Act are reproduced hereunder:- “45. Opinions of experts - When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of 13 hand writing or finger-impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts. Such person called experts. Illustrations (a) The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant. (b) The question is whether A, at the time of doing a certain act, was by reason of unsoundness of mind, in capable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law. The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or knowing that what they do is either wrong or contrary to law, are relevant. (c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinion of experts on the question whether the two documents were written by the same person or by different persons are relevant. It is also necessary to refer the provisions of Section 20 of the Negotiable Instruments Act, which is quoted hereunder:- “20. Inchoate stamped instruments - Where one person signs and delivers to another a 14 paper stamped in accordance with the law relating to negotiable instruments then in force in [India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as then case may be, upon it a negotiable instrument, instrument, for any amount specified therein and not exceeding the amount covered by the stamp. 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, provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.” Perusal of the provisions of the aforesaid section shows that when a person signs and delivers a blank or incomplete negotiable instrument, he gives prima facie authority to the holder to make and complete the document for any amount specified therein. The only rider is that no person other than holder shall recover the amount from the person delivering the instrument in excess of amount intended by him. Referring to the aforesaid provision, a detail judgment was given by the Bombay high Court in the case reported in 2001 CCC 423 so as the judgment in the case reported in 2005(1) CCC 608. The aforesaid issue was considered even in the case of T. Nagappa (supra), but then the effect of the 15 aforesaid provision has not been dealt with other than making a reference in Para 6 wherein it is stated that provision of Section 20 of the Act caste a rider that no person other than holder in due course shall recover the amount from the person delivering the instrument anything in excess of the amount intended by him to be paid. In any case, Section 20 of the Act has to be given its true meaning by plain reading itself. As and when allegations are made that incomplete or blank cheque was given, issue is required to be dealt with as per the provisions of Section 20 of the Act. Thereby merely that allegation of issuance of incomplete negotiable instrument does not create absolute defence in favour of the accused unless corroborative evidence exists to show that by threat or fraud, a cheque was taken. In the light of the aforesaid discussion, if the cases in hand are taken note of, then I find that in S.B. Criminal Misc. Petition No.2656/2009 calls for no interference rather in the aforesaid case, a petition under Section 482 is literally a second revision petition having filed revision earlier and therein revisional Court has given cogent reason for rejecting the petition and I do not find any error therein for calling my interference. 16 Same is the position in respect of S.B. Criminal Misc. Petition No.2684/2009 wherein also revisional Court has passed a detailed order because therein initially it was admitted that cheque was given but was shown to be towards security, hence, when the issuance of cheque was not initially disputed, the application for seeking expert opinion cannot be said to be bonafide. In S.B. Criminal Misc. Petition No. 2603/2009, the Court below passed a detailed order which shows that it is only with a view to delay the proceedings, the application was moved by the petitioner. The petitioner was given several opportunities to cross-examine the witnesses and on the last occasion, when serious objection was raised by the complainant for grant of date, petitioner moved an application seeking expert opinion, thus the application so moved by the petitioner was not held to be bonafide. It is, however, necessary to observe that the Court is under an obligation to record its finding as per the provisions of Section 73 of the Evidence Act as discussed it in this judgment and if it is found that the Court should not venture in recording its opinion without expert report, then it is kept open for the Court to seek expert opinion. 17 In S.B. Criminal Misc. Petition No.2581/2009 – the application was moved at the stage when petitioner had already taken many adjournments to cross-examine complainant's witnesses and even cost was imposed. The allegation therein is that cheques were not signed or issued to the complainant, thus there exists fraudulent signature as well as writing. Section 73 of the Evidence Act has already been discussed and provides as to in what manner matter has to be dealt with as and when such applications are made. In view of the provisions of Section 73 of the Evidence Act, the Court may either observe its own finding, however, if it is not found to be safe to record such finding, then Court should not venture in its opinion without expert report. The matter is, thus, kept open for the Court to seek expert opinion, if so required. In the result, S.B. Criminal Misc. Petition Nos.2581/2009 and 2603/2009 are disposed of and S.B. Criminal Misc. Petition Nos.2656/2009 and 2684/2009 are dismissed. (M.N. BHANDARI), J. Sunil,JrPA