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2008(2) Crimes 219 (SC)
SUPREME COURT OF INDIA
S.B. Sinha & Lokeshwar Singh Panta, JJ.
T. Nagappa — Petitioner
versus
Y.R. Muralidhar — Respondent
Appeal (crl.) 707 of 2008
(Arising out of SLP (Crl.) No. 6933 of 2007)
Decided on : 24-04-2008
(b) Code of Criminal Procedure, 1973 – Section 243(2) r/w Article 21, Constitution of India – An accused has a right to fair trial and to adduce evidence for that purpose – Ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses etc. (Paras 7 and 8)
(c) Negotiable Instruments Act, 1881 – Section 20 – Only a prima facie right, that too conditional, had been conferred upon the holder of the negotiable instrument – Request of the appellant for referring the cheque to Forensic examination was bona fide. (Para 9)
(d) Administration of Justice – 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. (Para 11)
Facts of the case:
1. Appellant is said to have issued a cheque in favour 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.
2. On or about 1.8.2006, the appellant filed an application under Section 243 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 been paid back, but instead of returning the cheque, the same has been misused by entering a huge amount, which he did not owe to the appellant.
3. By reason of an order dated 29.11.2006, the learned Magistrate dismissed the said application,
4. A revision application filed thereagainst has also been dismissed by the High Court.
Findings of the Court :
Prayer of the respondent, being bona fide should not have been rejected.
Result : Appeal allowed.
judgment
S.B. Sinha, J. —
1. Leave granted.
2. Appellant is facing criminal charges before the Court of XV Additional Chief Metropolitan Magistrate, Bangalore in C.C. No.6835 of 2005 purported to be under Section 138 of the Negotiable Instruments Act. He is said to have issued a cheque in favour 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 been paid back, but instead of returning the cheque, the same has been misused by entering a huge amount, which he did not owe to the appellant.
4. By reason of an order dated 29.11.2006, the learned Magistrate dismissed the said application, opining :
“Another main contention of the accused is that the cheque was signed in the year 1999 and the writing appearing on the cheque has been filled up in the month of August, October and December 2004. The accused is at liberty to prove the said aspect by leading a cogent evidence. In my opinion, to prove the age of the writing on Exp-2 it is not necessary to send the exp-2 to the handwriting expert. Thus, viewing from any angle, I do not find any good reason to refer the Exp-2 to the handwriting expert as prayed in the petition. Hence I answer the above said point in the negative.”
5. A revision application filed thereagainst has also been dismissed by the High Court, stating :
“It is the case of the accused/petitioner herein that the signed cheque of the accused is misused by the petitioner by filling contents therein after about 5 years. According to the petitioner the cheque is of the year 1999 and the complainant has filled up the cheque by dating the said as 9.10.2004. Hence to ascertain the age of the cheque, the application came to be filed by the petitioner which is rejected. The evidence of DW-2, the Assistant Manager of UCO Bank, Jayanagar Branch, Bangalore coupled with the recital of Ex.D-11 i.e. the register pertaining 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 another a paper stamped in accordance with the law relating to negotiable instruments then in force in 1 [India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the
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