IMPORTANT POINT
When a contention is raised that complainant had misused the cheque then prayer of accused for sending cheque to handwriting expert for its examination deserves to be considered and granted.

Raghuvendra S. Rathore, J.— The accused petitioner has challenged the order dated 05.06.2009 passed by the learned trial court whereby his application under section 73 of the Evidence Act read with section 243(2) Cr.P.C. has been rejected.

2. On perusal of the order impugned, it is revealed that the application has been rejected primarily on the ground of delay. It is said that at a later stage of the trial, the instant application has come to be filed by the accused. However, the accused had filed the application before the Trial Court with the averment that he had only signed the cheque but had not made other entries in his own handwriting. The other entries in respect of the amount, date and name have not been filled-up by the petitioner and in these circumstances; he had requested that a report from the handwriting expert be obtained so as to unfold the truth.

3. Before this court also, learned counsel for the respondent has reiterated the contention raised before the trial court that it was the accused who had made all the entries in the cheque, including the signature in his own hand writing and the application had been filed by the accused after an inordinate delay.

4. This court has considered the facts and circumstances of the case as well as the submissions made by the counsels for the rival parties and carefully perused the impugned order passed by the trial court.

5. At the out-set, it may be mentioned that when a contention was raised that the complainant had misused the cheque, then an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. It is for the accused to discharge the burden, as envisaged under law, for which he must be granted opportunity. The right of the accused to defend himself is an essential component of a fair trial. It is for the said purpose that the legislature in its wisdom had incorporated Section 243(2) Cr.P.C. which reads as under:

“Section 243.- Evidence for defence.

(1) -

(2) If the accused, after he had entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing:

Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.

6. So far as examination of the cheque in question by a handwriting expert is concerned, it has been laid down by the Hon’ble Supreme Court and followed by the High Court in subsequent judgments that a Magistrate holding an inquiry in respect of an offence triable by him does not exceed his powers if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert to compare the disputed signature or writing with the admitted writing or signature of the accused so as to reach his own conclusion with the assistance of the expert.

7. The said principle of law had been laid down by the Hon’ble Supreme Court in he case of Kalyani Bhaskar (Mrs.) v. M.S.Sampoornam (Mrs.)1, wherein the Hon’ble Supreme Court in para 12 has observed as under:

‘Section 243(2) is clear that a Magistrate holding an inquiry under 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 handwriting expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature o