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2006(9) Supreme 823
SUPREME COURT OF INDIA
(From Madras High Court)
G.P. Mathur and Lokeshwar Singh Panta, JJ.
Kalyani Baskar - Appellant
versus
M.S. Sampornam - Respondent
Criminal Appeal No. 1293 of 2006
(Arising out of SLP (Crl.) No. 2639 of 2004)
Decided on 11-12-2006
Counsel for the Parties :
For the Appellant : V. Krishna Murthy, Advocate.
For the Respondent : S.G.K. Kumar and Ms. Srikala Gurukrishna Kumar, Advocates.
Held : 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 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-writing 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 courts should be jealous in seeing that there is no breach of them. We have not been able to appreciate the view of the learned Judge of the High Court that the petitioner has filed application under Section 243 Cr.P.C. without naming any person as witness or anything to be summoned, which are to be sent for handwriting expert for examination. As noticed above, Section 243(2) Cr.P.C. refers to a stage when the prosecution closes its evidence after examining the witnesses and the accused has entered upon his defence. The appellant in this case requests for sending the cheque, in question, for the opinion of the hand-writing expert after the respondent has closed her evidence, the Magistrate should have granted such a request unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. In the circumstances, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable. (Para 12)
JUDGMENT
Lokeshwar Singh Panta, J. - Leave granted.
2. This appeal by special leave, directed against the order dated 10.2.2004 of the High Court of Judicature at Madras, involves a question with regard to the scope of the powers of the Magistrate under Section 243 of the Code of Criminal Procedure, 1973 [hereinafter referred to as ‘Cr.P.C.]. It arises out of these circumstances.
3. A complaint has been preferred by Mrs. M. S. Sampoornam, complainant-respondent herein, against Mrs. Kalyani Baskar, appellant herein, and her husband for the offence under Section 138 of the Negotiable Instruments Act, 1881 [for short "the Act"] before the Judicial Magistrate, Tambaram, Chennai, alleging that the appellant along with her husband jointly signed and issued a cheque No. 037296 for discharging their liability. On presentation of the said cheque, it was dishonoured for insufficient funds. Though the notice was served upon both the accused persons yet no reply has been sent by them. Thereafter, observing all the formalities as contemplated under the Act, the complainant-respondent had preferred C.C. No. 439/1998 on the file of the Judicial Magistrate, Tambaram, Chennai, against the appellant and her husband. The accused appeared before the Magistrate and filed an application under Section 245 of Cr.P.C. raising inter alia preliminary objections that:- (1) the accused has not signed the cheque nor issued it to the complainant-respondent; (2) the cheque, in question, was drawn from the individual account of the accused and therefore, as alleged by the complainant, the accused and her husband could not have jointly signed and issued the cheque; (3) the signature on the cheque may be sent for expert opinion to ascertain bona fide of the same; and (4) neither the appellant nor her husband owe any debt to the respondent.
4. The Judicial Magistrate dismissed the said application on the ground that the genuineness of the signature could be questioned only at the time of trial of the complaint. Thereafter, the trial was commenced and the evidence of the respondent was recorded. The banker of the appellant during the cross-examination deposed that he has not verified the signature before returning the cheque, in question, as dishonoured. In these circumstances, during the trial of the case the appellant preferred an application under Section 243 of Cr.P.C., requesting the Magistrate to send the cheque in question for expert opinion to ascertain the correctness and genuineness of the appellants signature appearing thereon. The Magistrate, however, dismissed the application on the ground that it was not mandatory that every disputed document or signature has to be sent to an Expert for opinion, that the original document filed in the court cannot be sent out for any reason and that every document filed before the court should be safe till the disposal of the litigation.
5. Feeling aggrieved by this order, the appellant preferred a Criminal Revision Case No. 335 of 2002 under Section 397 read with Section 401 of Cr. P.C in the High Court of Judicature at Madras. The Revision Petition came to be dismissed by the impugned order. Hence, this appeal by the appellant.
6. We have heard Shri V. Krishnamurthy, learned counsel appearing for the appellant-accused and Shri S.G.K. Kumar, learned counsel appearing for the respondent and examined the material on record.
7. Learned counsel for the appellant contended that the High Court has failed to appreciate the legal position that no offence can be established against the appellant by the respondent unless the respondent proves on record that the cheque, in question, bears the signature of the appellant. According to the learned counsel, the appellant cannot be debarred from entering upon her defence and produce her evidence without deciding the genuineness of the signature on the cheque, in question and the dismissal of the application by the Magistrate has caused miscarriage of justice to the appel
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