A party's right to a fair trial includes the ability to challenge evidence through proper legal procedures, particularly concerning disputed signatures in cheque dishonour cases.

Judgment :

Chittaranjan Dash, J.

1. By means of this application, the Petitioner seeks to set aside the order dated 29.08.2023 passed by the learned J.M.F.C., Jajpur Road in 1CC Case No.76 of 2022.

2. The background facts of the case are that the Petitioner had taken a friendly loan of Rs.3,50,000/- (Rupees Three Lakhs Fifty Thousand only) from the Opposite Party, with an assurance to return the same within two months. After completion of the said period, when the Opposite Party demanded repayment of the borrowed amount, the accused, instead of paying the money, issued a cheque bearing No.000006 dated 28.10.2021 for Rs.3,50,000/- (Rupees Three Lakhs Fifty Thousand only), drawn on Bandhan Bank, Jajpur Town Branch, in favour of the Opposite Party. The Opposite Party presented the said cheque with his banker, i.e., State Bank of India, Jajpur Road Branch, on 12.11.2021 for collection of the amount. However, the cheque was dishonoured with the endorsement “Funds Insufficient.” Consequently, the Opposite Party filed a complaint before the learned J.M.F.C., Jajpur Road, under Section 138 of the N.I. Act. During the pendency of the trial, the Petitioner filed an application under Section 73 of the EVIDENCE ACT , 1872, praying for sending the cheque to a handwriting expert for examination, as the Petitioner disputed the signature appearing on the cheque as being forged and fabricated. The Opposite Party filed an objection to the said application, whereupon the learned court, instead of disposing of the petition, proceeded with the trial. Eventually, the petition was considered, and by order dated 29.08.2023, the learned court declined to send the cheque for examination by a handwriting expert. Being aggrieved by the aforesaid order, the Petitioner has moved this Court, inter alia, on the ground that he has a right to a fair trial and to raise objection regarding the disputed signature, and that unless the same is examined with the assistance of an expert opinion, he would be seriously prejudiced. The learned counsel also relied upon the decision in the matter of M/s. Survika Distributors Pvt. Ltd. & another vs. S.R. Retail Zone Pvt. Ltd. reported in (2018) 70 OCR 51, passed by the Co-ordinate Bench of this court.

3. Perused the impugned order dated 29.08.2023, the learned court while rejecting the prayer of the Petitioner held as follows:-

“This order arises out petition filed U/S 73 of Indian EVIDENCE ACT . On 17.08.23 with a prayer to send Exhibit number P-1/P.W.1 for Handwriting Expert opinion on the grounds stated therein.

Copy served. Heard on the petition. Perused the case record, petition and other connected documents. It is found that the case is at the stage of recording of evidence. The complainant P.W.1 had already been examined and exhibit i.e. the cheque was marked as Ext.P-1/P.W.1 without any objection from the opposite side. The signatures of the accused which were marked as Ext.P-1¹ and Ext.P-12 were marked without objection. It was found that the cheque was returned vide cheque return memo marked as Ext.P-2 with endorsement of “Funds Insufficient” and not due to signature mis- match on the cheque. Due to these reasons, this Court does not feel it proper to allow the petition, hence it is rejected. “

4. As revealed from the case record of the learned court below, the prayer has been made by the Petitioner under Section 73 of the EVIDENCE ACT , 1872. The said provision of the EVIDENCE ACT empowers the Court to compare disputed handwriting with writings made in its presence, or with writings admitted or proved to be that of the concerned person. The Court may apply its own observation