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CASE NO.:

Appeal (crl.) 1293 of 2006

PETITIONER:

Mrs. Kalyani Baskar

RESPONDENT:

Mrs. M. S. Sampoornam

DATE OF JUDGMENT: 11/12/2006

BENCH:

G. P. Mathur & Lokeshwar Singh Panta

JUDGMENT:

J U D G M E N T

[Arising out of S.L.P. (Crl.) No. 2639 OF 2004]

Lokeshwar Singh Panta, J.

Leave granted.

This appeal by special leave, directed against the order

dated 10.2.2004 of the High Court of Judicature at Madras,

involves a question with regard to the scope of the powers of

the Magistrate under Section 243 of the Code of Criminal

Procedure, 1973 [hereinafter referred to as ‘Cr.P.C.’]. It arises

out of these circumstances.

A complaint has been preferred by Mrs. M. S.

Sampoornam, complainant-respondent herein, against Mrs.

Kalyani Baskar, appellant herein, and her husband for the

offence under Section 138 of the Negotiable Instruments Act,

1881 [for short "the Act"] before the Judicial Magistrate,

Tambaram, Chennai, alleging that the appellant along with

her husband jointly signed and issued a cheque No. 037296

for discharging their liability. On presentation of the said

cheque, it was dishonoured for ’insufficient funds’. Though

the notice was served upon both the accused persons yet no

reply has been sent by them. Thereafter, observing all the

formalities as contemplated under the Act, the complainant-

respondent had preferred C.C. No. 439/1998 on the file of the

Judicial Magistrate, Tambaram, Chennai, against the

appellant and her husband. The accused appeared before the

Magistrate and filed an application under Section 245 of

Cr.P.C. raising inter alia preliminary objections that:- (1) the

accused has not signed the cheque nor issued it to the

complainant-respondent; (2) the cheque, in question, was

drawn from the individual account of the accused and

therefore, as alleged by the complainant, the accused and her

husband could not have jointly signed and issued the cheque;

(3) the signature on the cheque may be sent for expert opinion

to ascertain bona fide of the same; and (4) neither the

appellant nor her husband owe any debt to the respondent.

The Judicial Magistrate dismissed the said application on

the ground that the genuineness of the signature could be

questioned only at the time of trial of the complaint.

Thereafter, the trial was commenced and the evidence of the

respondent was recorded. The banker of the appellant during

the cross-examination deposed that he has not verified the

signature before returning the cheque, in question, as

dishonoured. In these circumstances, during the trial of the

case the appellant preferred an application under Section 243

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of Cr.P.C., requesting the Magistrate to send the cheque in

question for expert opinion to ascertain the correctness and

genuineness of the appellant’s signature appearing thereon.

The Magistrate, however, dismissed the application on the

ground that it was not mandatory that every disputed

document or signature has to be sent to an Expert for opinion,

that the original document filed in the court cannot be sent

out for any reason and that every document filed before the

court should be safe till the disposal of the litigation.

Feeling aggrieved by this order, the appellant preferred a

Criminal Revision Case No. 335 of 2002 under Section 397

read with Section 401 of Cr. P.C in the High Court of

Judicature at Madras. The Revision Petition came to be

dismissed by the impugned order. Hence, this appeal by the

appellant.

We have heard Shri V. Krishnamurthy, learned counsel

appearing for the appellant-accused and Shri S.G.K. Kumar,

learned counsel appearing for the respondent and examined

the material on record.

Learned counsel for the appellant contended that the

High Court has failed to appreciate the legal position that no

offence can be