JUDGMENT :

This is an application under section 391 of the Cr.P.C. filed by the petitioner Bikram Kumar Jena for passing necessary orders to send the disputed cheque (Ext.2) to the handwriting expert. In the prayer portion, nothing has been indicated as to on what aspect the handwriting expert would examine the cheque in question. However, in paragraph-5 of the misc. case, it is mentioned that the amount mentioned in the cheque, the date mentioned therein and the person to whom it has been issued have been manipulated by the complainant-opposite party and the same is in a complete different ink. Admittedly, no such prayer was made by the petitioner either before the learned Trial Court or before the learned Appellate Court to send the disputed cheque to the handwriting expert.

2. Learned counsel for the petitioner Mr. D.P. Dhal contended that to arrive at a just and fair conclusion in the case, the disputed cheque should be sent to the handwriting expert so that the plea of the defence that the cheque has been manipulated could be confirmed.

3. Learned counsel for the opposite party Mr. Maheswar Dash on the other hand filed objection to such application wherein it is mentioned that the attempt of the petitioner in filing such Misc. Case is nothing but to patch up the lacuna and when the accused has not examined himself during trial in support of his defence plea even though he is a competent witness in view of section 315 of Cr.P.C. and he has not raised any such specific plea before the learned Trial Court and therefore, it would not be proper for this Court to entertain such a petition at this stage which has been made to defeat the ends of justice.

4. The petitioner has been convicted under section 138 of the Negotiable Instruments Act and sentenced to undergo S.I. for a period of six months and pay a compensation of Rs.15,00,000/- (rupees fifteen lakhs only) to the complainant-opposite party by the learned S.D.J.M., Bhubaneswar in I.C.C. Case No.2134 of 2007 vide impugned judgment and order dated 21.01.2009 which was confirmed in appeal by the learned Sessions Judge, Khurda at Bhubaneswar vide impugned judgment and order dated 13.10.2010 in Criminal Appeal No.08 of 2009.

5. There is no dispute that the High Court while exercising power of revision can also exercise the power of the Appellate Court under section 391 of Cr.P.C. in its discretion in taking further evidence which would be clear from the provision under section 401(1) of Cr.P.C.

6. The learned counsel for the petitioner placed the decision of the Hon’ble Supreme Court in case of Kalyani Baskar (Mrs.) Vs. M.S. Sampoornam (Mrs.) reported in (2007) 2 SCC 258 wherein it was held that the “fair trial” includes fair and proper opportunities allowed by law to prove the innocence of an accused. Adducing evidence in support of the defence is a valuable right and denial of that right means denial of fair trial. It is essential that the rules of procedure designed to ensure justice should be scrupulously followed and the Courts should be jealous in seeing that there is no breach of them. In that case when the accused appeared before the Trial Court in the complaint case, he filed an application under section 243 of Cr.P.C. raising, inter alia, preliminary objections with a prayer that the signature on the cheque may be sent for expert opinion to ascertain bonafides of the same. The learned Magistrate dismissed such application. The matter was challenged before the High Court which also confirmed the order of the Magistrate, against which the matter came before the Hon’ble Supreme Court. Considering the provisions under section 243(2) of Cr.P.C., the Magistrate was directed to take appropriate step for obtaining the opinion of handwriting expert on the point whether the signature on the cheque was that of the accused and to proceed with the trial of the case.

7. The learned counsel for the petitioner further placed the decision of the Hon’ble Supreme Court in case of Mohd. Hussai