1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MMO No. 239 of 2010. Date of decision: 4th May, 2011. __________________________________________________________ Ajay Kumar Sood. ….Appellant. Versus M/s Bhandari Katha Udyog. ….Respondent. ._________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the petitioner : Mr. Satyen Vaidya, Advocate. For the Respondent : Mr. Rajesh Verma, Advocate. __________________________________________________________ Justice Dev Darshan Sud, J. (Oral) The petitioner is aggrieved by the order passed by learned Judicial Magistrate Ist Class, Rajgarh camp at Sarahan rejecting his application for having the cheque (subject matter of the complaint), sent for examination of the handwriting expert. 2. The primary ground on which rejection has been made is that this is a summons case and provisions of Section 243 of the Cr.P.C. would not be attracted. 3. This is the only ground for rejection. What the Court was required to do, was to ascertain the intention of the party and to grant an opportunity to lead the evidence in support of his defence which is the right of the party. 4. The Supreme Court in T. Nagappa versus Y.R. Muralidhar, AIR 2008 SC 2010 holds: 1 Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 “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 3 only a prima facie authority is granted, inter 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)………… (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 4 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 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 5 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 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 6 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.” 4. In these circumstances, this petition is allowed and order is set aside with a direction to the trial Court to redetermine the application afresh in accordance with law. 5. Needless to say that the mere permission granted to the petitioner herein for examination of the cheque in question from the 7 handwriting expert does not establish his defence and evidence which has been led, has to be considered in the totality of the facts and circumstances of the case. The respondent shall be granted an opportunity to the respondent herein to lead such further evidence to rebut the evidence brought on record by the petitioner herein. 6. Petition is disposed of accordingly with no order as to the costs. All miscellaneous applications are also disposed of. All interim orders are vacated. (Dev Darshan Sud), Judge. 4th May, 2011. (jai)