IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 251 of 2010. Date of Decision : 27.4.2011. Sandeep Kumar …..Petitioner. Versus. Chhaju Ram & Anr. ….Respondents. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting? Yes. For the petitioner : Mr. Dinesh Bhanot, Advocate. For the respondents : Mr. Sunil Goel, Advocate for respondent No.1. Ms. Subh Mahajan, Dy. A.G. for respondent No.2. Justice Dev Darshan Sud, J.(Oral). The petitioner is challenging the order of the learned Judicial Magistrate 1st Class, Nahan rejecting his application under Section 243 Cr.P.C. read with Section 45 of Indian Evidence Act that the cheque (Negotiable instrument the subject matter of the complaint) has to be examined by the handwriting expert. 2. The application filed by the petitioner pleads: “2. That it is the defence of the accused that the cheque in question Ex. C1 was not issued in favour of the complainant by the accused, and the same has been misused by the complainant as the complainant has managed to procure the said cheque from his son to whom the cheque was originally given as security by the accused but it was Whether the reports of the local papers are allowed to see the judgment? Yes. 2 blank. So taking the advantage of the blank cheque the complainant procured it falsely from his son and used it against the accused to extract undue amount from the accused falsely by entering huge amount in the cheque which the accused is not owe to the complainant. 3. That the cheque has not been filled by the accused in favour of the complainant. And if the accused has to return such a huge amount to the complainant he would have filled the name of the drawee by himself as he is an educated and qualified person. So it has become essential and expedient in the interest of justice to send the cheque in question to forensic science laboratory/handwriting expert to compare the amount and date written on cheque with the signature of the accused on cheque and to ascertain the age of ink in the amount and date written on cheque with the signatures of accused on cheque. Hence this application. ………….It is therefore respectfully prayed that the cheque in question bearing No.209557 dated 19.6.2008 relied upon by the complainant may kindly be ordered to be sent to the state forensic science laboratory/handwriting expert to compare the amount and date written on cheque with the signatures of the accused on cheque so as to ascertain the similarity 3 between it, and to ascertain the age of ink in the amount and date written on cheque with signatures of accused on cheque in the interest of justice. And the report may kindly be called on record. 3. In a nut shell the case set out by the petitioner is that the cheque was never handed over to the respondent but to his son with whom he had some financial dealings; that the respondent-complainant has misused it by filling in the amount, name, thus tampering with it and claiming money never due or outstanding to him etc. This is evident from the prayer which is made by the petitioner requesting that the amount, date and signature on the cheque be compared so as to ascertain the similarity between all these writings. In other words, the case pleaded is that the petitioner had only signed the cheque but had not filled in the amount and the name of the person to whom it is payable. 4. Learned trial Court, basically relying upon the provisions of Section 20 of the Negotiable Instrument Act rejected the application observing that once a cheque has been signed and handed over to the holder, the law grants him (holder) an authority to fill in the amount and other details. 5. I have heard learned counsel for the parties. 6. Learned counsel for the petitioner relies upon the decision of the Supreme Court in T. Nagappa versus Y.R. Muralidhar, AIR 2008 SC 2010 holding: 4 “6. The learned trial Judge, as also the High Court, in support of their respective orders, have relied upon Section 20 of the Instruments Act, which reads as under: “Section 20 – Inchoate stamped instruments.- Where one person signs and delivers to another a 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 the case may be, upon it a negotiable 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.” By reason of the aforementioned provision only a right has been created in the holder of the cheque subject to the conditions mentioned therein. Thereby only a prima facie authority is granted, inter 5 alia, to complete an incomplete negotiable instrument. The provision has a rider, namely, 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 therein. 7. When a contention has been raised that the complainant has misused the cheque, even in a case where a presumption can be raised under Section 118(a) or 139 of the said Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. As the law places the burden on the accused, he must be given an opportunity to discharge it. An accused has a right to fair trial. He has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognized by the Parliament in terms of sub section (2) of Section 243 of the Code of Criminal Procedure, which reads as under: Section 243-Evidence for defence.- (1)………… 6 (2) If the accused, after he had entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing; Provided that, when the accused has cross- examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.” 8. 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 inters of sub- section (2) of Section 243 of the Code is bona fide or not or 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 7 assistance with regard to summoning of witnesses etc. If permitted to do so, steps therefor, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protracting the trial or summon witnesses whose evidence would not be at all relevant. 9. The learned trial Judge as also the High Court rejected the contention of the appellant only having regard to the provisions of Section 20 of the Negotiable Instruments Act. The very fact that by reason thereof, only a prima facie right had been conferred upon the holder of the negotiable instrument and the same being subject to the conditions as noticed hereinbefore, we are of the opinion that the application filed by the appellant was bona fide. The issue now almost stands concluded by a decision of this Court in Kalyani Baskar (Mrs.) v. M.S. Sampoornam ( Mrs.) [(12007)2 SCC258] (in which one of us, L.S. Panta, J., was a member) wherein it was held: “12. Section 243(2) is clear that a Magistrate holding an inquiry under Cr.PC in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he 8 directs to send the document for enabling the same to be compared by a handwriting expert 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.” 9 7. To my mind, this decision squarely covers the submissions made on behalf of the petitioner herein to the extent that he should given an opportunity to lead evidence in support of his defence. 8. Learned counsel for the petitioner further placed reliance on the decision of this Court in Chaman Lal versus Kapoor Din, CMPMO No. 165 of 2010 decided on 3rd August, 2010 in support of his contention following the same principle. 9. Learned counsel for the respondents places reliance upon the decision of this Court in Rajiv Bansal versus Sunny Kumar, Cr. MMO No. 43 of 2010 decided on 26.7.2010 and urges that where a person issuing a cheque does not dispute his signatures on the instrument, the provisions of Section 20 of the Negotiable Instrument Act are attracted. To my mind this decision is not attracted to the facts of the present case and is based on the facts as urged before the learned trial Court. 10. Learned counsel appearing for the respondent submits that application has been rightly rejected by the learned trial Court more so in view of the fact that it has been moved at a belated stage. He submits that in case the cheque has been misused on the allegations made in the application, it constitutes a serious offence. The petitioner did not resist either the notice or made any attempt to institute any action civil or criminal. He submits that allegations being serious in nature, a prudent person would have taken immediate action once it was found that the cheque in question was misused. I am not entering into this 10 controversy at this stage. There is force in what the learned counsel for the respondent urges but it will be open to the complainant to urge all these points before the learned Court below at the appropriate stage. 11. In view of the decision in T. Nagappa’s case, this application is being disposed of on the short ground that the petitioner has a right to lead evidence in defence. What the veracity of the evidence would be is for the learned trial Court to judge on the facts in the case and on the submissions made by the learned counsel. Merely granting permission to the petitioner does not per se establish his defence. Needless to say that once an opportunity is granted to the petitioner herein to lead expert evidence, the respondent shall also be granted an opportunity in rebuttal. This order does not determine the merits of the respective claim of the parties. 12. The petition is disposed of accordingly with no order as to the costs. (Dev Darshan Sud), Judge. 27th April, 2011. (jai)