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TMI Blog2022 (6) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... nity must be granted to the accused for adducing evidence in rebuttal thereof. As the law places burden on the accused, he must be given an opportunity to discharge it. The complainant will invariably not disclose that the body of the cheque has been filled up by him or at his instance even where the signatures on the cheque has been accepted by the accused. Without doubt, the holder of the cheque has the authority to fill the same and the cheque would be a valid instrument but to start with, the first step available with an accused to rebut the presumption that the cheque had been issued for the discharge of a legally enforceable debt is by examining a handwriting expert to testify that the signatory and the author of the body of the cheque are different persons. Even if the difference in writing is established, the accused will still have to rebut the presumption under the Act, that the cheque is a valid tender and that he had made the payment to the complainant but despite that fact, the complainant filled up the cheque and presented the same leading to it being dishonoured. The judgment in T. Nagappa's case [ 2008 (4) TMI 789 - SUPREME COURT ] lays down the law more e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough it had been signed by him. 4. The complainant s evidence was closed on 10.07.2019 and the statement of the petitioner under Section 313 Cr.P.C. was recorded on the same day and the petitioner filed an application for calling the fingerprint and handwriting expert for comparing the handwriting in question on the same day. 5. Meanwhile, in the statement under Section 313 Cr.P.C., the petitioner took the stand that the petitioner did not issue the cheque to the complainant rather the blank signed cheque was given to one Subhash Chand, Commission Agent as security but that was misused by the complainant in connivance with Subhash Chand. 6. The said application for calling and examining the fingerprint and handwriting expert came to be dismissed by the impugned order dated 24.07.2019 (Annexure P-4) passed by Judicial Magistrate, 1st Class, Karnal. 7. The counsel for the petitioner/accused contends that the impugned order dated 24.07.2019 had been passed without considering the mandatory provisions prescribed under Sections 243 Cr.P.C. and 247 Cr.P.C. The application for leading defence evidence could be rejected only if it was made for the purpose of vexation, delay or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g further, it would be necessary to examine the judgments of the Hon ble Supreme Court and this Court on the issue as cited by the learned counsel for the petitioner/accused. The Hon ble Supreme Court in Kalyani Baskar Versus M.S. Sampoornam, 2007(1) RCR (Criminal) 311, held as under:- 11. Section 243 (2) is clear that a Magistrate holding an inquiry under the Criminal Procedure Code 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 hand-writing 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 hand-wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 recognised 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ert. 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. 10. However, it is not necessary to have any expert opinion on the question other than the following : Whether the writings appearing in the said cheque on the front page is written on the same day and time when the said cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons recorded by him, did not find merit in the application and dismissed the same. While dismissing the application it was observed that, the accused has admitted the signature on the cheque and hence naturally the burden is, shifted on the accused to disprove the version of the complainant and by merely sending the cheque or the document to the hand writing expert, no purpose will be served. After making a reference to the decisions of this Court and that of the Madras and Kerala High Courts, it was held that, it is not necessary to send for examination the cheque by a hand writing expert, in view of admitting of the signature on the cheque. *** **** **** 13. Keeping in view the prima facie facts and record, it has to be held that, both the Trial Court and Revision Court, by dismissing the application, have acted illegally. When the case of the accused is that, his cheque has been mis-used, though the presumption under Section 118 (a) and 139 of the Act can be raised, still an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. Denying of the opportunity, is illegal. Considering the facts and circumstances of the case, in my opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. 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. 6. The present petitioner, though does not dispute signature on the cheques in question, yet according to him the said cheques were given to respondent No. 1 by way of security, which are misused by him by filing up the places in the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no doubt that as and when such an application is filed, the same shall be dealt with and decided by the trial Court in accordance with the provisions of law keeping principle of fair trial into consideration. (Emphasis supplied) The Himachal Pradesh High Court in Raj Kumar Versus M/s Ram Krishan Sons, 2016(3) ILR (H.P.) 416, held as under:- 2. The Minimal facts as are necessary for the determination of this case are that the respondent filed a complaint against the petitioner under Section 138 of the Negotiable Instruments Act (for short the Act ) claiming dishonour of cheque of value of L 2,25,000/-, whereas, the stand of the petitioner was that he in order to maintain the relations and further in order to repose confidence had issued five cheques of L 25,000/- each to the respondent as security. It was further claimed that apart from the defence already taken, the respondent otherwise had interpolated the amount in the cheques and in place of L 25,000/- he had pre-fixed two and thereby converted the amount to L 2,25,000/-. 3. During the course of proceedings, the petitioner filed an application under Section 45 of the Evidence Act for comparison of handw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had no relevance in the proceedings could he have refused the permission. But, once this was not the case, then I see no reason why the learned Magistrate ought not to have sent the documents for examination enabling the same to be compared by the Handwriting Expert which would facilitate in arriving at a correct decision. 9. The petitioner cannot be convicted without an opportunity of being given a fair chance to present his evidence and if it is denied then there would be no fair trial . After-all fair trial includes fair and proper opportunities allowed by law to prove the parties innocence. Adducing evidence in support of the defence is a valuable right. This was precisely what was held by the Hon'ble Supreme Court in Kalyani Baskar v. M.S. Sampoornam (2007) 2 SCC 258 which reads thus:- 12. Section 243 (2) is clear that a Magistrate holding an inquiry under the Cr.P.C. 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 hand-writing expert because even in adopting this course, the purpose is to enable the Magistrate t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. The learned counsel for the complainant/respondent on the other hand referred to the following judgments:- The Hon ble Supreme Court in Sampelly Satyanarayana Rao Versus Indian Renewable Energy Development Agency Limited, 2016(4) RCR (Civil) 487, held as under:- 18. In Rangappa v. Sri Mohan, 2010(3) RCR (Criminal) 164 : 2010(3) RCR (Civil) 197 : 2010(3) Recent Apex Judgments (R.A.J.) 415 : (2010) 11 SCC 441 this Court held that once issuance of a cheque and signature thereon are admitted, presumption of a legally enforceable debt in favour of the holder of the cheque arises. It is for the accused to rebut the said presumption, though accused need not adduce his own evidence and can rely upon the material submitted by the complainant. However, mere statement of the accused may not be sufficient to rebut the said presumption. A post dated cheque is a well recognised mode of payment Goaplast (P) Ltd. v. Chico Ursula D' Souza 2003(2) RCR (Criminal) 131 : (2003) 3 SCC 232. The Hon'ble Supreme Court in Bir Singh s case (supra), held as under:- 37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, it was his contention that he had not signed the A.D. card of the statutory notice sent to him by the Complainant. 4. The learned J.M.F.C. referred to the case of Lilykutty v. Lawrance, (2003(2) DCR 610) to say that no law provided that the entire body of the cheque had to be written by the drawer and also to the case of K. Bhaskaran v. Shankar V. Balan, (1999 CriLJ 606) to say that once the sender had dispatched the notice by post with the correct address written on it then it is deemed to have been served on the sender unless the sender proves that it was not really served. The learned trial Court also came to the conclusion that it was not material to find out whether the contents of the cheque were in the handwriting of the accused or not. The learned trial Court also felt that the opinion of the handwriting expert would not help the Court to decide on the controversy/dispute between the parties but would only delay the trial of the case and, therefore, proceeded to dismiss the application filed by the accused. 8. On the other hand, Mr. M.S. Sonak, the learned Counsel on behalf of the Complainant, relying on the very same Judgments has submitted that no purpose w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on the principle that in such cases there is a tacit or implied consent by the drawer to fill in the details of the amount and date of the cheque. I will give you a blank signed cheque is an expression which we heard very often even before prosecutions under Section 138 of the Act came to be lodged and the said expression signifies the drawer gives authority to holder or payee to complete the cheque in all respects including the amount to be filled in and the date to present it for payment and obtain the payment due thereon. As far as the receipt of the notice by the accused was concerned both the Courts below have placed reliance on the case of K. Bhaskaran v. Sankaran Vaidhyan Balan and another (supra) which lays down the principle that the notice is addressed to the correct address of the drawer of the cheque/accused and is sent by registered post the same is deemed to have received by the addressee. As far as this case is concerned one does not know why the applicant/accused has chosen not to displace the presumption available to the Complainant by virtue of Section 27 of the General Act by examining the postman. But the accused has shown his inclination to examine a hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded in the Act has proved to be inadequate but the procedure prescribed for the Courts to deal with such matters has also been found to be cumbersome and the Courts are unable to dispose of the cases expeditiously in a time bound manner in view of the procedure contained in the Act as a result of which a large number of cases are reported to be pending in various Courts in the Country. Keeping that in mind the said Amendment Act 55/2002 was passed, inter alia, with a view to expedite the procedure by dispensing with preliminary evidence, by providing special procedure of service of summons, to provide for summary trial, etc. and all this was done with a view to speed up the disposal of the cases. Sending the cheques to the handwriting expert when not required to be sent, would only add to the delay in the cases. It is common knowledge that it is the accused would always tend to gain by delay than anybody else. (Emphasis supplied) This Court in Gurmeet Singh Versus State of Haryana another, 2012(2) RCR (Criminal) 306, held as under:- 7. Admittedly, the petitioner has taken a stand that the cheque was meant for one Sunil Kumar and the same has been misused by the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of T. Nagappa v. Y.R. Muralidhar 2008(3) RCR (Criminal) 926 : 2008(4) Recent Apex Judgments (R.A.J.) 592 : (2008) 5 SCC 633 in which it was observed that it is the accused who knows how to prove his defence and the court being the master of the proceedings must determine as to whether the application filed by the accused under sub-section (2) of Section 243 is bona fide or not. It was further observed that ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses etc. 10. This Court has already observed in several cases that once a document is referred to FSL or CFSL, it normally takes four to five years in obtaining report. Since the complaint is pending since 2013, sending the cheque in question to the FSL would take another four to five years to bring the complaint for conclusion. In this case, the signature on the cheques is not disputed. Such an approach of the petitioner cannot be appreciated as it would tantamount to further delay of the conclusion of the complaint case. The complaint case was fixed for defence evidence. Therefore, the petitioner cannot get any assistance from the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Emphasis supplied) 13. A perusal of the judgments in T. Nagappa s case etc. (supra), would clearly establish that when a contention is raised that the complainant has misused the cheque by filling up the body of the same, even in a case, where a presumption can be raised under Section 118(a) or 139 of the Negotiable Instruments Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. As the law places burden on the accused, he must be given an opportunity to discharge it. The complainant will invariably not disclose that the body of the cheque has been filled up by him or at his instance even where the signatures on the cheque has been accepted by the accused. Without doubt, the holder of the cheque has the authority to fill the same and the cheque would be a valid instrument but to start with, the first step available with an accused to rebut the presumption that the cheque had been issued for the discharge of a legally enforceable debt is by examining a handwriting expert to testify that the signatory and the author of the body of the cheque are different persons. Even if the difference in writing is established, the accused w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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