IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE JUSTICE BINOD KUMAR DWIVEDI th ON THE 18 OF JULY, 2024 MISC. CRIMINAL CASE No. 29523 of 2024 DEVKANYA BAI Versus MAHESH YADAV Appearance:

Shri Himanshu Joshi - Advocate for applicant.

ORDER This petition under Section 482 of Cr.P.C. has been preferred assailing th the order dated 20/05/2024 passed by 27 Additional Sessions Judge, Indore in Criminal Revision No.154/2024, whereby order dated 15/02/2024 passed by Judicial Magistrate First Class, Indore in Case number SC NIA No.257/2024 (Old No.26063/2015) has been reversed, wherein the learned trial Court has allowed the application filed under Section 45 of Evidence Act for examination of disputed cheque by handwriting expert.

2. Disputed cheque number 764242 dated 28/04/2015 for an amount of Rs.5,00,000/- payable on UCO Bank Branch Pithampur was given by applicant for repayment of an amount of Rs.5,00,000/- borrowed from the respondent / complainant Mahesh was dishonoured on 29/04/2015 on the ground “Funds Insufficient”. On demand when this amount was not paid, a complaint under Section 138 of Negotiable Instruments Act, 1881 was filed and same was registered, wherein the applicant is an accused.

3. Learned counsel for the applicant submits that the trial Court has Signature Not Verified Signed by: TEJPRAKASH given opportunity to the applicant for examination of the disputed cheque through handwriting expert, but learned revisional Court vide impugned order dated 20/05/2024 has deprived the applicant of his valuable right to adduce the evidence in defence and thereby from the right of fair trial. To bolster his submission, learned counsel for the applicant has placed reliance upon para 12 of judgment by the Apex Court in the case of Kalyani Baskar (Mrs.) Vs. M.S. Sampoornam (Mrs.) reported in (2007) 2 SCC 258. Para 12 of the judgment is extracted herein below:

"Section 243 (2) is clear that a Magistrate holding an inquiry under the Cr.P.C. in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a hand-writing expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the hand- writing expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. 'Fair trial' includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and courts should be jealous in seeing that there is no breach of them. We have not been able to appreciate the view of the learned Judge of the High Court that the petitioner has filed application under Section 243 Cr.P.C. without naming any person as witness or anything to be summoned, which are to be sent for handwriting expert for examination. As noticed above, Section 243(2) Cr.P.C. refers to a stage when the prosecution closes its evidence after examining the witnesses and the accused has entered upon his defence. The appellant in this case requests for sending the cheque, in question, for the opinion of the hand-writing expert after the respondent has clos