The main legal point established in the judgment is the importance of fair trial and the accused's right to present evidence in support of their defense, including obtaining expert opinion on disputed evidence.

Lokeshwar Singh Panta, J. : Leave granted.

1. 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.

2. A complaint has been preferred by Mrs. M. 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.

3. 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 appellant's 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.

4. 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.

5. 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.

6. 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 Magistrate has caused miscarriage of justice to the appellant.

7. On