The court emphasized the right to fair trial, allowing evidence from handwriting expert if necessary under Section 73 of the Evidence Act.

S.S. Mishra, J.

The petitioner is aggrieved by the order dated 12.07.2016 passed by the learned J.M.F.C., Soro in 1.C.C. Case No.93 of 2015, whereby the learned trial Court has rejected the application of the petitioner seeking to send the subject cheque to obtain handwriting expert opinion.

2. The present petition is arising out of a Complaint Case U/s. 138 of the N.I. Act initiated by O.P. No.1 against petitioner. The instant petition has been filed on 13.10.2016. On 23.02.2017, this Court while issuing notice to the opposite party stayed the further proceeding in 1.C.C. Case No.93 of 2015 pending in the Court of the learned J.M.F.C., Soro.

3. The petitioner’s prime ground for seeking to refer the cheque to the handwriting expert is that the complainant/opposite party in his examination-in-chief while answering to one of the questions of the petitioner has categorically stated that he has no objection if the report from handwriting expert is sought for by the petitioner/accused. Relevant would be to reproduce that part of the testimony of the complainant/opposite party which reads as under:-

“It is not a fact that I have accepted the cheque as mortgage. It is not a fact that I have advanced his some money by taking the cheque as mortgage. If the said cheque is sent to handwriting expert, I have no objection.”

Relying upon the aforementioned statement of the complainant/opposite party, the accused/petitioner has prayed before the learned trial Court to send the cheque to the handwriting expert, which has been turned down by the impugned order dated 12.07.2016. Hence this petition.

4. Heard Mr. Jitendra Kumar Mishra, learned counsel for the petitioner and Ms. Bini Mishra, learned counsel for the opposite party.

5. The case of the petitioner is that the petitioner had some business dealing with the opposite party. He has given the blank cheque to the opposite party on security/mortgage. The said cheque has been misused by the complainant by filling up the cheque and by presenting the cheque with the banker of the petitioner, which eventually got dishonoured. On the other hand, the case of the complainant is that the accused/petitioner had purchased some building materials from his shop towards the discharge of liability and the outstanding cheque amounting to Rs.2,70,000/- was issued to him. The cheque has been returned dishonoured on presentation. Therefore, the opposite party had issued legal notice on 02.03.2015 to the petitioner. However, the petitioner even after receiving the notice did not reply, therefore, the complaint case was filed.

6. Mr. Mishra, learned counsel for the petitioner contended that since the complainant has virtually given consent for sending the cheque to handwriting expert, therefore, there is no occasion for the learned Trial Court to reject the prayer made by him. In order to substantiate his case, he has relied upon the judgment of the Hon’ble Supreme Court in the case of Kalyani Baskar vrs. M.S. Sampoornam reported in (2007) 2 SCC 258. Relevant would be to reproduce paragraph-12 of the said judgment, which reads thus:-

“12. Section 243 (2) is clear that a Magistrate holding an inquiry under CrPC 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 handwriting 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 ap