Madhya Pradesh High Court
Mohit Sharma vs Anil Maheshwari on 17 March, 2017
CRR-455-2012
(MOHIT SHARMA Vs ANIL MAHESHWARI)
17-03-2017
JUDGMENT
(17.03.2017)
1. This Revision has been filed under Section 397 read with Section 401 of the Code of Criminal Procedure against the order dated 15.2.2012 passed by Judicial Magistrate I Class, Gairatganj district Raisen in R.T. No.200/2010 whereby the application submitted by the applicant under Section 45 of the Evidence Act for sending the disputed cheque for examination by the handwriting expert has been rejected.
2. Facts of the case in narrow compass are that the petitioner is facing criminal trial in the Court of Judicial Magistrate I Class, Gairatganj District Raisen, on a complaint filed by the Respondent under Section 138 of the Negotiable Instruments Act. In this case, petitioner filed an application under Section 45 of the Evidence Act read with Section 142 of the Negotiable Instruments Act praying that disputed cheque No.99264 which was signed by the petitioner was lost on 16.6.2008 and with a view to prevent its misuse, information was given to the Police and the concerned Branch of the Bank. The respondent has got the aforesaid cheque and thereafter misused the same and filed complaint against the petitioner.
3. In the reply to the notice given by the respondent, petitioner informed the respondent that it is the lost cheque which was never given to the Respondent and he has misused it as on the cheque neither the name nor the amount and date has been written by him. It was written by the Respondent's Advocate, therefore, after entering into the defence, he wants to prove the aforesaid fact by calling the report of the handwriting expert.
4. This petition was objected on behalf of the respondent on the ground that when the petitioner has admitted his signature on the cheque, therefore in view of the provisions of Section 20 of the Negotiable Instrument Act, examination of the cheque by the handwriting expert will be meaningless. Hence, the petition is intended to cause delay in the trial, therefore, the same deserves to be dismissed.
5. On account of the aforesaid reasons, the learned lower Court has rejected the application, hence, this Revision is filed.
6. On behalf of the petitioner, it is contended that production of evidence in his defence in the criminal trial is the constitutional right of the petitioner. If the petitioner is deprived of producing evidence in his defence then, it will be contrary to process of fair trial. Merely on the basis of the provisions of Section 20 of the Negotiable Instruments Act, he may not be deprived of producing his defence to the effect that he never gave the cheque to the respondent in discharge of any debt or liability and the cheque in question is a cheque, which was lost and later on found by the Respondent and the same is being misused by the Respondent. The circumstance that except the signature part, nothing has been written by the petitioner and which is denied by the Respondent, has to be proved by the petitioner to show and establish his aforesaid defence, hence the order of learned trial Court is contrary to law and cause injustice to the petitioner.
7. Learned counsel appearing for the petitioner has placed reliance to the judgment of the Apex Court in the case of Kalyani Baskar vs. M.S. Sampoornam [(2007)2 SCC 258], T. Nagappa vs. Y.R. Muralidhar [(2008) 5 SCC 633] and G. Someshwar Rao vs. Samineni Nageshwar Rao [(2009) 14 SCC 677].
8. In the aforesaid judgments, the Hon. Apex Court has laid down that the accused has right to fair trial. He has a right to defend himself as a part of his human as also his fundamental rights under Section 21 of the Constitution of India, the right to defend oneself and for that purpose right to adduce evidence is recognised by the Parliament in terms of Section 2 of Section 243 of the Criminal Procedure Code.
9. Learned Counsel for the petitioner has also placed reliance on the judgment of this Court in the case of Abhishek vs. Ramesh (2012 (2) MPLJ 472) and Sohanlal Singhal & another vs. Sunil Jain reported in (2015 (1) MPLJ 622) in which placing reliance on the aforesaid judgment of Kalyani Baskar (supra) and T. Nagappa (supra) permission to call report of handwriting expert regarding disputed cheque has been given.
10. On the other hand, learned counsel appearing for the Respondent has placed reliance to the judgment of this Court in the case of Sanjay vs. Rajeev (2007(2) MPHT 182), Satyendra Upadhyaya vs. Omprakash Rathore @ Japan Singh (2010 MPLJ online 1), Bhadauria Tiles vs. Ramkumar Sing Kushwah (2011 MPLJ online 1), Sunita Dubey vs. Hukum Singh Ahirwar ( 2015(1) MPLJ 574) and the judgment passed in M.Cr.C.No. 13975/16 at Gwalior Bench in the case of Rajeev Jain vs. State of M.P., on 30.1.2017. In the aforesaid judgments, it is held that on the ground that accused has admitted the signature on the cheque, therefore, in view of provisions of Section 20 of the Negotiable Instruments Act, the prayer to send the cheque for the opinion of the handwriting expert cannot be given. Even the other part of the cheque has been wrongly filled by the other persons, the person concerned who has issued the cheque is liable to honour the cheque, therefore no useful purpose will be served by sending the cheque for the opinion of the handwriting expert.
11. The effect of provisions of Section 20 of the Negotiable Instruments Act has been clarified by the Hon. Apex Court in the case of T. Nagappa (supra). The relevant part of the judgment reads as under :-
6. The learned Trial Judge, as also the High Court, in support of their respective orders, have relied upon Section 20 of the Negotiable Instruments Act, which reads as under :
"Section 20 - Inchoate stamped instruments. Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in 1 [India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder."
By reason of the aforementioned provision only a right has been created in the holder of the cheque subject to the conditions mentioned therein. Thereby only a prima facie authority is granted, inter alia, to complete an incomplete negotiable instrument. The provision has a rider, namely, no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid therein.
7. When a contention has been raised that the complainant has misused the cheque, even in a case where a presumption can be raised under Section 118(a ) or 139 of the said Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. As the law places the burden on the accused, he must be given an opportunity to discharge it.
8. An accused has a right to fair trial. He has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognized by the Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure, which reads as under :
"Section 243 - Evidence for defence. (1) â¦. (2) If the accused, after he had entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-
examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing:
Provided that, when the accused has cross- examined or had the opportunity of cross- examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice."
9. What should be the nature of evidence is not a matter which should be left only to the discretion of the Court. It is the accused who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused in terms of sub-section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses etc. If permitted to do so, steps therefor, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protracting the trial or summon witnesses whose evidence would not be at all relevant.
10. The learned Trial Judge as also the High Court rejected the contention of the appellant only having regard to the provisions of Section 20 of the Negotiable Instruments Act. The very fact that by reason thereof, only a prima facie right had been conferred upon the holder of the negotiable instrument and the same being subject to the conditions as noticed hereinbefore, we are of the opinion that the application filed by the appellant was bona fide.
11. The issue now almost stands concluded by a decision of this Court in Kalyani Baskar v. M.S. Sampoornam (in which one of us, L.S. Panta, J, was a member) wherein it was held : (SCC p.262, para 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 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 handwriting 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 the courts should be jealous in seeing that there is no breach of them."
In view of the law laid down in the aforesaid case of T. Nagappa (supra) it is crystal clear that rejection of such application only having regard to provisions of Section 20 of the Negotiable Instruments Act is not correct, as the very fact that by reason thereof, only a prima facie right had been conferred upon the holder of the Negotiable Instrument and the same being subject to conditions as noticed hereinbefore and the accused has constitutional right to adduce evidence in his defence to rebut the case of prosecution and to obtained his defence.
13. In view of the aforesaid discussions, it is clear that the aforesaid judgments of this High Court with regard to refusing the prayer made by the accused regarding sending the cheque for the opinion of the handwriting expert have been denied by ignoring the aforesaid interpretations of the Apex Court with reagard to provisions of Section 20 of the Negotiable Instruments Act, therefore, they cannot be considered to be a good law as apparently they are per incurium . Hence, on the basis of the aforesaid judgment, respondent is not entitled to get any relief and the contention of the learned counsel for the petitioner is supported by the aforesaid judgments of the Apex Court, particularly, the judgment of the case of T. Nagappa (supra), which is also followed in the judgment of G. Someshwar Rao (supra)therefore, the appellantâs contention is acceptable.
14. Hence, this petition is allowed and the impugned order dated 15.2.2012 passed by the Judicial Magistrate First Class is set aside. It is directed that the trial Court will call for the report of handwriting expert with regard to disputed cheque as early as possible on the expenditure of the petitioner. After obtaining the report and recording the statement of the handwriting expert, the trial be completed as expeditiously as possible, probably within three months.
This petition is disposed of accordingly.
(J. P. GUPTA) JUDGE vj