The accused have the right to obtain expert opinion in defense, as per the provisions of Chapter XIX, Cr.P.C., and failure to allow this right would be an illegality vitiating the proceedings.

Headnote:
Expert Opinion - Negotiable Instruments Act - Section 138 - Chapter XIX, Cr.P.C. - Section 243(2)
Fact of the Case:

The accused in complaints filed under Section 138 of the Negotiable Instruments Act requested the cheques, which they denied were drawn by them, to be sent to a handwriting expert for opinion on their genuineness. The trial Court initially turned down the request, leading to a series of challenges and petitions.
Finding of the Court:

The Court found that the accused have the right to adduce evidence in defense, including obtaining expert opinion, as per the provisions of Chapter XIX, Cr.P.C. Failure to give full effect to Section 243, Cr.P.C. would be an illegality and would vitiate the entire proceedings.
Issues: The main issue was the interpretation of the provisions in Chapter XIX, Cr.P.C. and the accused's right to obtain expert opinion in defense under Section 243(2).
Ratio Decidendi: The Court held that the accused have the right to request the Court to send documents to an expert for opinion, as implicit in sub-section (2) of Section 243, Cr.P.C. The provisions are imperative and meant for a fair trial to the accused, subject to the caveat engrafted in the provisions itself.
Final Decision: The Court directed the Magistrates to forward the documents to the expert in terms of the requests made by the accused, at the cost of the petitioners.

Judgment :-

THULASIDAS, J.

A common question arises for decision in these petitions which have come before us on a reference made by a learned Judge of this Court, who has doubted the correctness of Geetha v. Aliyar Kunju, (1993) 2 Ker LT (SN) 29 and Retnakumar v. Registrar High Court, (1993) 2 Ker LT 677 : (1994 Cri LJ NOC 262) and opined that they require reconsideration.

2. Petitioners are the accused in complaints filed under Section 138 of the Negotiable Instruments Act. At the stage of defence evidence, they applied that the cheques, which they denied were drawn by them in favour of the respondents-complainants, may be sent to the handwriting export for his opinion as to their genuineness, which request was turned down by the trial Court for different reasons. The order of the Magistrate on the petition filed by the petitioner In Crl.M.C. No. 1598 of 1994 was challenged in Crl.M.C. No. 906 of 1993 and this Court observed :

"If she thinks that an expert's opinion will be necessary to bolster up his defence, she may then apply to the Court to issue summons to the expert. If she is interested in having the cheque examined by a handwriting expert, she can apply to the Court to supply a photocopy of the questioned cheque to him so that she may forward the same to the handwriting expert of her choice."

"...... if she is advised to adopt the said defence, it is open to her to file an application before the trial Court that a photocopy of the questioned cheque may be supplied to her for having it examined through the handwriting expert. It any such application is made, the Magistrate shall dispose of the same in the light of the observations made above."

She accordingly forwarded a photocopy of the disputed cheque to the handwriting expert, who expressed inability to give his opinion in the absence of the original document and therefore she made a fresh application for sending the original cheque itself to the handwriting expert, which the Court below dismissed, by its order that she has challenged. C.M.P. No. 2347 of 1994 in C.C. No. 2387 of 1995 was also dismissed by the Judicial First Class Magistrate, by his order dated 30-4-1994, which was challenged in Crl.R.P. No. 24 of 1994 before the Additional Sessions Court, Kottayam. But the said revision was dismissed affirming the Magistrate's order, which is under challenge in Crl.M.C. No. 2387 of 1995.

3. The material facts in Retnakumar v. Registrar, High Court, (1993) 2 Ker LT 677 : (1994 Cri LJ NOC 262) and these cases are identical. At the stage of defence, the accused filed an application before the trial Court for forwarding a document to the Forensic Science Laboratory for expert opinion on certain aspects. The Magistrate dismissed the application. The accused challenged his order before this Court. While dismissing his petition it was observed :

"The procedure prescribed in Chapter XIX of the Code for trial of warrant cases instituted on police report is the procedure to be followed in this case since as per S. 313 of the Code, the Magistrate to whom a complaint is made under S. 340 or 341 shall deal with it as if it were instituted on a police report, under the said Chapter, the Magistrate has to take all evidence for prosecution as enjoined by S. 242. When the case reaches next stage, the Magistrate has to call upon the accused to enter on his defence as provided in S. 243. If the accused applies the Magistrate has to issue process for compelling the attendance of any witness or production of any document or thing for defence evidence. It is not provided anywhere in Chapter XIX of the Code that the accused can apply for sending any document or article for expert examination at the stage when he is called upon to enter on his defence. Even under Chapter XXI of the Code which deals with "general provisions as to enquiries or trial" no provision enabling the Court to make such investigation is envisaged. At the same time there is no restriction for the accused obtaining an

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