The main legal point established is that the accused have the right to obtain expert opinion in defense under Section 243(2) of the Code of Criminal Procedure to ensure a fair trial.

(Per 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 vs. Aliyar Kunju, 1993 (2) KLT (SN) 29 and Retnakumar vs. Registrar, High Court, 1993(2) KLT 677 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 hand-writing expert 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 hand-writing expert, she can apply to the Court to supply a photo copy 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 photo copy of the questioned cheque may be supplied to her for having it examined through the handwriting expert. If 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 hand-writing expert, which the Court below dismissed, by its order that she has challenged. C.M.P. No. 2347 of 1994 in C.C. No. 351 of 1990 filed by the petitioner in Crl.M.C. 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 I Magistrate's order, which is under challenge in Crl.M.C. No. 2387 of 1995.

3. The material facts in Retnakumar vs. Registrar, High Court 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 or. certain aspects. The Magistrate dismissed the application. The accused challenged this 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 Section 313 of the Code, the Magistrate to whom a complaint is made under Section 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 Section 242. When the case reaches next stage, the Magistrate has to call upon the accused to enter on his defence as provided in Section 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 deal 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 any exp