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TMI Blog2025 (3) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... ears have gone by. However, the matter is still pending for conclusion of the trial. In that scenario, the trial court's order rejecting the application of the petitioner appears to be unquestionable. At the same time, right of an accused to defend in the criminal case is indefeasible. In the case of present nature when presumption is operating against the petitioner, which is rebuttable in nature, the right of the petitioner-accused to lead evidence in his rebuttal is also inalienable right. Therefore, the petitioner being accused has right to adduce all evidence under his command to disprove the case of the complainant-opposite party. The petitioner should get at least an opportunity to lead his evidence in rebuttal. Therefore, it is open for the petitioneraccused to obtain report from a private handwriting expert and place it on record, if so advised. It is also open for the petitioner to lead any other evidence to prove his case on his defence, but that should not be at the cost of delaying the proceeding inordinately. Conclusion - The petitioner is allwoed an opportunity to present defense evidence, including expert reports, to rebut the complainant's case. The CRLMC is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal Bank of Commerce at Tinimuhani Branch, Kendrapara in favour of the Complainant's Company. The cheque on being presented on 30.12.2019 by the Complainant-Company at HDFC Bank at its Nandisahi, Cuttack Town Branch, was returned unpaid on the ground "FUNDS INSUFFCIENT" by the Bank on 31.12.2019 and was received by the Complainant-Company on 03.01.2020. After receipt of such dishonoured Cheque, the Complainant-Company issued necessary notice U/s 138 (b) of N.I. Act on 03.01.2020 and dispatched the same on 04.01.2020 by Regd. Post with A.D. to the proper address of the accused and the said notice was duly received on the accused on 10.01.2020 as per the Tracking Report of the Postal Department. The accused failed to comply with the demand as made in the notice by the Complainant- Company and the complainant-company became fully satisfied that the accused is in a mood to cheat the Complainant-Company and wants to deprive it from its legal entitlement. The Complainant-Company authorized its Branch Manager of Cuttack Branch at Bhanapur, namely, Mr. Jayadev Sethy to file this complaint before the appropriate court to prosecute the accused for alleged commission of offence under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned order in depriving the petitioner for an opportunity to rebut the presumption drawn against him. Accordingly, the impugned order has been passed depriving the petitioner for a fair and impartial trial. In support of his argument, learned counsel for the petitioner has relied upon the decision of the Hon'ble Supreme Court in the case of Kalyani Baskar (Mrs) Vrs. M.S. Mampoornam (Mrs.) reported in (2007) 2 SCC 258, relevant paragraphs of which are extracted hereunder:- "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 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 again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Khushboo Sharivastava, D/o. Sri Mohan Prasad Shrivastava vs. the Union of India (UOI) Through the Secretary, Human Resources Department, Govt. of India and others reported in 2009 (1) PLJR 867. Ultimately the Judge will be an expert apart from other experts or an expert of the expert or Court is an expert of experts in concluding the matter by taking the decision after considering the entire facts of the case, as keeping in view the scope and object of Section 73 of the Indian Evidence Act, 1872" 11. In the instant petition, the petitioner is arraigned as accused in C.C. No.709/2014, wherein he is facing up the trial for the offence punishable under Section 138 of the N.I. Act. However, the respondent-complainant having a responsibility to prove the guilt of the accused by producing the cogent and corroborative evidence in order to secure the conviction whatever the offence has been faced by the accused and also put on trial. But Sections 45 and 73 of the Act, 1872, it is referred relating to the opinion report secured by the competent person otherwise to see an expert relating to the disputed cheque at Ex.P-1 subjected for examination and to give the opinion re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner to send the cheques to handwriting expert. He has submitted that the learned court below has rightly passed the order dated 30.01.2024 rejecting the application, as the petitioner in order to discharge his debt had given the cheque to the opposite party-complainant. He also draws this Court's attention to the fact that the accused-petitioner has not disputed his signature on cheque issued by him to the opposite party-complainant. 7. Mr. Das, learned counsel for the opposite party further submitted that on the mere allegation that the inks are different in the cheque, therefore, it should be sent to the handwriting expert is not tenable under law. Once the signature in the cheque is admitted by the accused, presumption under section 139 of the N.I. Act shall operate against him. He therefore, vehemently opposed the prayer made by the petitioner for sending the exhibits to the handwriting experts. To substantiate his argument, he has relied upon the judgment of the Madras High Court in the case of S. Gopal v. D. Balachandran, reported in MANU/TN/0119/2008. He has relied upon the following passages of the judgment: "7. This court in RAJENDRAN v. USHARANI (2001-LW (Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reproduced:- "Even assuming that the cheque was filled up by some other person, once execution is admitted, it shall be taken that the cheque was issued by the accused in favour of the complainant towards the discharge of the liability. No law provides that in case of any negotiable instrument, entire body has to be written by maker or drawer only. What is material is signature of drawer of maker and not the body writing. Hence, question of body writing has no significance. This has been laid down by the Gujarat High Court in Satish Jayantilal Shah v. Pankaj Mashuwala, 1996 Cri.L.J.3099." Similarly, Mr. Das has cited the judgments of the Punjab and Haryana High Court and Gujarat High Court. Paragraph-8 of the judgment of Gujarat High Court reported in 1996 CRI.L.J. 3099, Satish Jayantilal Shah v. Pankaj Mashuwala and another has little relevancy to the present case, which reads thus: "8. While admitting issuance of disputed cheques, Mr. Gupta, the learned advocate for the applicant/accused vehemently argues that the body of cheques is not written by the drawer and that the cheque were not voluntarily given in discharge of legal debt or liability and thus provisions of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused has not yet adduced any evidence to show that any of the documents exhibited are manufactured or fake. Hence, this Court feels that this is not the proper stage for such a petition. Additionally, this is a case of 2020. More than 3 years have already elapsed. Allowing of such petition at this stage would amount to further unnecessary delay. Hence, there is no proper justification for the petition and hence, at this stage, this Court is not inclined to allow the same. Thus, having regard to the above discussion, the petition stands rejected. Put up on 07.03.2024 for defence evidence." 10. Reading of the above observations made by the trial court makes it abundantly clear that the petitioner has indeed not disputed his signature contained in the cheque. Therefore, the trial court has rightly rejected the prayer for sending the cheque and other exhibits to handwriting experts. The trial court has also taken into consideration the delayed motion of the petitioner to send the exhibits to the handwriting experts. Although the judgments in subject cited by both the parties at the Bar are conflicting views on the subject but the fact remains that under the statutory command ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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