IMPORTANT POINT
Genuineness of a signature cannot be commented upon either by complainant or by Court unless scientific data is gathered with regard to genuineness of signature.

R.S. Chauhan, J.—The petitioner is aggrieved by the order dated 9.11.2009 passed by the Additional Chief Judicial Magistrate No.7, Jaipur City, Jaipur, whereby the learned Magistrate has declined the petitioner’s application for sending the cheque in question to the FSL for its opinion.

2. The brief facts of the case are that Ashok Bohara, the respondent, had filed a criminal complaint against the petitioner for offence under Section 138 of the Negotiable Instrument Act (‘the Act’, for short). According to the complainant/respondent, on 15.4.2006, the petitioner had borrowed Rs.20,000 and subsequently, on the same day, he borrowed Rs.15,000. While borrowing Rs.20,000, he had given him a cheque for the same amount. However, subsequently when he borrowed Rs.15,000 the petitioner changed the amount in the said cheque from Rs.20,000 to Rs.35,000. Moreover, the petitioner assured the complainant that upon depositing, the cheque would be encashed by the bank. On 29.8.2006, the complainant submitted the cheque for enchashment. However, the same was dishonoured. Therefore, again on 5.10.2006, the complainant submitted the cheque. But, the cheque was returned with the remark that “there is insufficient fund”. Since the petitioner did not repay the amount mentioned in the cheque, the complainant filed the complaint under Section 138 of the Act. During the examination of the complainant, as a witness, the petitioner moved an application for sending the cheque in question to the FSL for its opinion. According to the petitioner, he claimed that the signatures on the cheque are not his. Moreover and most importantly, the signature made under the over-writing, carried out in cheque is certainly not his. However, vide order dated 9.11.2004, the application has been dismissed. Hence, this petition before this Court.

3. Mr. Ghanshyam S. Sisodia, the learned counsel for the petitioner, has vehemently contended that the petitioner’s case is that the signature made under the over-writing in the amount mentioned in the cheque is not his. Therefore, the opinion of the FSL is essential. Secondly, since the petitioner had borrowed only Rs.20,000, he is willing to compromise and pay the said amount to the complainant. However, the complainant is not ready to accept the said amount. Thirdly, relying upon the cases of Kalyani Baskar v. M.S. Sampornam1 and T. Nagappa v. Y.R. Muralidhar2 the learned counsel has contended that since the burden is placed on the accused to rebut the presumption under the Act, an opportunity needs to be given to the petitioner to adduce the evidence to prove the fact that the signature under the over-writing is not his. The learned counsel has also contended that the accused has a right of fair trial under Article 21 of the Constitution of India. Therefore, the learned Magistrate has erred in dismissing the application of the petitioner on the ground that the complainant is yet to be cross- examined and the application has been filed in order to delay the proceedings.

4. On the other hand, Mr. Mahendra Goyal, the learned counsel for the respondent, has raised the following pleas: firstly, the petitioner has taken a contradictory stand in his application filed before the Court. On the one hand, he claims that the signature in the cheque is not his, yet on the other hand he claims that his signature under the correction in the amount is not his. Thus, the petitioner is confusing as to what is his stand before the learned trial Court. Secondly, the cheque has not been returned on the ground that the signatures do not match. In fact, the cheque has been returned on the ground of “insufficient fund”. Therefore, no fruitful purpose would be served by sending the cheque to the FSL for its opinion. In order to buttress this contention, the learned counsel has relied upon the cases of L.C. Goyal v. Mrs. Suresh Joshi & Ors.3 and Raj Kumar Gupta v. State of Raj. & Anr.4 Thirdly, the petitioner had already sought number of opportunit