1. Heard learned counsel for the parties.

2. Rule. Rule made returnable forthwith. Taken-up for final hearing by consent of learned counsel for the respective parties.

3. By this application, the applicant (accused), who is facing prosecution under Section 138 of the Negotiable Instruments Act, has prayed for an opportunity to lead evidence of expert in respect of the cheque in question bearing No. 561293, drawn on ICICI Bank, Sambalpur Branch. According to the applicant, signature on the cheque was admitted, which was issued in the sum of Rs.5,00,000/-only, but it is submitted that complainant or somebody on his behalf completed the cheque in his handwriting and inserted figure ‘1’ prior to the figure of Rs.5,00,000/-in the cheque so as to give impression that cheque was issued in the sum of Rs. 15,00,000/-.

4. It appears that the accused had applied before learned JMFC, on 04/03/2010, for an opportunity to seek expert’s opinion by sending the cheque in question for examination by Forensic Science Laboratory on the following points.

(a) Whether the entire contents of the cheque were written at the same time / day or they were written at different day and time in part?

(b) Whether the ink used in writing the cheques is different?

(c) Whether age of various writings on the cheque is the same or different?

(d) Whether the cheque has been written by one person or different persons?

(e) Whether the signature and the figure of Rs.5,00,000/-were written on both the cheques on the same date or not?

(f) Whether beside the figure of Rs.5,00,000/-a figure “1” was inserted subsequently or not and whether the figure of Rs.5,00,0000/-and a figure “1” inserted is in same ink on the same day and time in cheque bearing No. 561293.

5. The accused had, on 04/03/2010, filed an application for sending the cheque in question for examination to Forensic Science Laboratory. Learned 7th Jt. JMFC and Special Court of u/s 138 of N.I. Act, Nagpur, upon hearing the applicant, passed an order on 31/08/2010 thereby rejecting the application of the applicant (accused) observing as follows:

“If at all figure “1” was inserted later on that can be seen by naked eyes by any person if so.”

6. Learned Advocate for the applicant submitted that despite such observation in the course of reasoned order, ultimately the application was rejected and an opportunity of adducing evidence was unreasonably denied to the applicant (accused). Learned Advocate for the applicant placed reliance upon ruling in the case of T. Nagappa Versus Y. R. Muralidhar reported in (2008) 5 SCC 633 wherein the Apex Court dealt with the identical contention regarding incomplete negotiable instrument and observed, in paragraph ‘7’, as follows:

“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.”

It was also observed that an accused has a right to fair trial and 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. At the same time it was also observed that there cannot be any doubt whatsoever that the accused should not be allowed unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant.

7. Learned Advocate on behalf of the respondent invited my attention to the ruling in the case of R. Jagadeesan v. N. Ayyasamy and Anr. Reported in 2010 Cri. L. J. 2917, in which reference was made to the ruling of T. Nagappa’s case by the Apex Court, and the Madras High Court had expressed difficulty to seek expert’s opinion regarding age of the writings on the cheque. It was observed that the Apex Court was concerned with the right of the accused to have fair trial so as to se