The court affirmed the right to expert examination of disputed signatures, emphasizing the need for fair trial principles and the proper application of Section 73 of the Evidence Act.

O R D E R

The prayers in the Original Petition are as follows:-

i) To call for all records leading up to exhibit P9 and to set aside/quash the same.

ii) To direct the judicial class Magistrate Court-II, Pala to reconsider exhibit P7 and to allow the same.

iii) To dispense with the English translation of Malayalam exhibits.

iv) To grant such other reliefs which this honourable Court deem just and proper in the facts and circumstance of the case, including the cost of the petitioner.

2. The petitioner is the accused in ST No.39 of

2023 on the file of the Judicial First Class Magistrate Court-II. Pala. Respondent No.2/the party respondent filed a complaint alleging the offence punishable under Section 138 of the Negotiable Instruments Act against the petitioner before the trial Court.

3. The Court took cognizance of the offence. The petitioner appeared on summons. He pleaded not guilty to the particulars of the offence read out to him. The Court proceeded with the trial. The case of the accused is that he had discharged the liability due to the complainant. The accused relied on Ext.D2, a receipt stated to have been issued by the complainant in support of his contention.

4. While the complainant was examined in cross, Ext.D2 was confronted to him, but he denied the signature in Ext.D2. The petitioner then gave evidence invoking Section 315 Cr.PC. Ext.D2 was marked through the petitioner. The petitioner filed Ext.P7 application requesting to send Ext.D2 for expert examination. The learned Magistrate dismissed the application as per Ext.P9 order. The relevant portion of the impugned order reads thus:-

“7. I have considered the rival submissions from both sides. In this case, the prayer is to send the Ext.D2 document for signature comparison. The document Ext.D2 is produced from the side of defense and the same was marked in evidence. But the petitioner had not stated anything as to any admitted signature of the complainant with which the signature is to be compared. There is only a vague prayer to forward the Ext.D2 for comparison. It is true that the court has the power to allow the parties to take steps for comparison of handwriting or signatures at any stage of the proceeding for just and proper adjudication of the case. Whether there are any admitted or proved documents is not stated by the petitioner. Whether any other signature admitted or proved of the same period as of the Ext.D2 is available is not clearly stated by the petitioner. In order to forward the signature for comparison the petitioner must show the availability of another signature admitted or proved as that of the complainant. In this case no such steps were taken by the petitioner. In such a case, the attempt of the petitioner is only to be viewed as a tactic to delay the proceedings. Hence the petition is only liable to be dismissed. “

5. I have heard the learned counsel for the petitioner, the learned counsel appearing for the party respondent and the learned Public Prosecutor.

6. The learned counsel for the petitioner submitted that the examination of Ext.D2 by an expert is highly required to establish his plea of discharge.

7. The learned counsel for the party respondent submitted that the attempt of the accused is to prolong the matter.

8. InKalyani Bhaskar v. M.S.Sampooranam [ 2007(2) SCC 258 ], the Supreme Court held that adducing evidence in support of the defence is a valuable right and denial of that right would mean denial of a fair trial. In that case, the Apex Court allowed the application filed by the accused for sending the cheque for opinion of the handwriting expert holding that the Magistrate should have granted such a request unless he thinks that the object of the accused is vexation or delaying the criminal proceedings.Kalyani Bhaskar is an authority for the proposition that if the intention of the accused is to protract the proceedings, the request for sending the cheque for expert opinion can be rejected. InNagappa v. Muralidhar [ AIR 2008 SC 2010 ]