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TMI Blog2008 (4) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondent for a sum of Rs. 7,50,000/- on 8.10.2004 which on depositing in the Bank was allegedly returned unpaid. A complaint petition was filed by the respondent contending that the appellant had committed an offence under Section 138 of the Negotiable Instruments Act. 3. On or about 1.8.2006, the appellant filed an application under Section 243 of the Code of Criminal Procedure wrongly mentioned as Section 293 of the Code of Criminal Procedure, 1973 for referring the cheque in question for examination by the Director of Forensic Science Laboratory for determining the age of his signature, contending that the respondent had obtained a signed cheque from him in the year 1999 as a security for a hand loan of Rs. 50,000/- which had b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to issuance of cheque book disclosed that the cheque containing Ex.P-2 (cheque leaf) was issued by the UCO Bank to the accused on 6.5.1997. If it is so, ascertaining the age of the cheque does not arise for consideration. In this matter, the signature on the cheque is admitted. If it is so the petitioner cannot dispute the contents of the cheque in view of the provisions of Section 20 of Negotiable Instruments Act. Hence there is no need to refer the cheque for Hand Writing Expert. 6. The learned Trial Judge, as also the High Court, in support of their respective orders, have relied upon Section 20 of the Negotiable Instruments Act, which reads as under: Section 20 - Inchoate stamped instruments.- Where one person signs and delivers to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 production of any document or oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly 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.) (2007)2SCC258 (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 CrPC in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as on the reverse, or in other words, whether the age of the writing on Ex.P2 on the front page is the same as that of the signature "T.Nagappa" appearing on the front as well as on the reverse of the Cheque Ex.P2?
11. Ms. Suri, however, pointed out that the application of the appellant being one under Section 293 of the Code of criminal Procedure was rightly rejected. It is now a well settled principle of law that non-mentioning or wrong mentioning of provision of law would not be of any relevance, if the Court had the requisite jurisdiction to pass an order.
12. For the aforementioned reasons, the impugned judgment cannot be sustained. It is set aside accordingly with the aforementioned directions.
Appeal is allowed. X X X X Extracts X X X X X X X X Extracts X X X X
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