IMPORTANT POINT
“Fair trial” includes fair and proper opportunities allowed by law to prove the accused insurance.

K. Mohanram, J.—The petitioner is facing trial for the offences under Section 138 of Negotiable Instruments Act in C.C. No. 406 of 2006 on the file of the learned Judicial Magistrate No. II, Erode. During the course of the examination of PW1, the complainant, the accused/petitioner herein filed Criminal M.P. No. 6350 of 2007 under Section 45 of Indian Evidence Act to send the cheque in question along with admitted signature of the accused to the expert for comparison and opinion regarding the genuineness of the signature found in the cheque. The case was taken on file on 22.8.2006 and pending for defence from 22.12.2006 till 23.10.2007 and the accused took time stating that he is going to settle the matter but he did not settle the matter and sought for further time which was opposed by the complainant and at that stage the present petition has been filed. It is contended by the complainant that the accused has not taken such a plea in his reply notice. In the reply notice, the accused had admitted that there was money transaction between the complainant and accused and the cheque was given as a security.

2. Learned Magistrate, on a careful consideration of the materials available on record, rejected the said petition. Being aggrieved by that, the accused has filed the present revision petition.

3. Mr. N. Manoharan, learned counsel for the petitioner has submitted that though it has not been specifically stated in the reply notice that the signature of the accused/petitioner herein has been forged, nevertheless it is stated in the reply notice as follows:

“Our client submits that he was having money transaction from your client since 2004 to 2005. Your client received several blank cheques and pronotes from our client as security.”

Further in the same reply notice it is stated as follows:

“Our client suspects that to wreck the vengeance, your client forged the said cheque alleged in your notice as already given by our client as security to your client. Further our client suspects that in order to get unlawful gain from our client, your client forged the document and caused you to issues the false notice. Our client did not borrow Rs. 1,90,000 from your client on 20.6.2006 and he did not give the abovesaid cheque to discharge the liability mentioned in your notice.”

4. Learned counsel further submitted that if the cheque in question is sent for expert opinion on prejudice will be caused. He has also relied upon decision of the Honourable Supreme Court in Kalyani Baskar v. M.S. Sampoornam1 and in that decision, the Hon’ble Supreme Court has held that the accused should be allowed to get the opinion of an expert as per Section 243 of Cr.P.C. In the said decision in para 12, Honourable Apex Court has observed as under:

“12. Section 243(2) is clear that 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 handwriting expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with 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 here 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