Criminal Application No. 1848 of 2010

11th April, 2012

Petitioner Counsel: Mr. V.R. MUNDRA
Respondent Counsel: Mr. A.K. BHANGDE, Ms NANDITA TRIPATHI

Cases Cited:
T. Nagappa Vs. Y. R. Muralidhar, 2008 ALL MR (Cri) 1945 (S.C.) =(2008) 5 SCC 633 [Para 6]
R. Jagadeesan Vs. N. Ayyasamy and Anr., 2010 Cri. L. J. 2917 [Para 7]

JUDGMENT

JUDGMENT :- Heard learned counsel for the parties.

2. Rule. Rule made returnable forthwith. Taken-up for final earing by consent of learned counsel for the respective parties.

3. By this application, the applicant (accused), who is facing prosecution under Section 138 of the Negotiable Instruments Act, has prayed for an opportunity to lead evidence of expert in respect of the cheque in question bearing No. 561293, drawn on ICICI Bank, Sambalpur Branch. According to the applicant, signature on the cheque was admitted, which was issued in the sum of Rs. 5,00,000/- only, but it is submitted that complainant or somebody on his behalf completed the cheque in his handwriting and inserted figure '1' prior to the figure of Rs. 5,00,000/- in the cheque so as to give impression that cheque was issued in the sum of Rs. 15,00,000/-.

4. It appears that the accused had applied before learned JMFC, on 04/03/2010, for an opportunity to seek expert's opinion by sending the cheque in question for examination by Forensic Science Laboratory on the following points.

(a) Whether the entire contents of the cheque were written at the same time / day or they were written at different day and time in part?

(b) Whether the ink used in writing the cheques is different?

(c) Whether age of various writings on the cheque is the same or different?

(d) Whether the cheque has been written by one person or different persons?

(e) Whether the signature and the figure of Rs. 5,00,000/- were written on both the cheques on the same date or not?

(f) Whether beside the figure of Rs. 5,00,000/- a figure "1" was inserted subsequently or not and whether the figure of Rs. 5,00,0000/- and a figure "1" inserted is in same ink on the same day and time in cheque bearing No. 561293.

5. The accused had, on 04/03/2010, filed an application for sending the cheque in question for examination to Forensic Science Laboratory. Learned 7th Jt. JMFC and Special Court of u/s 138 of N.I. Act, Nagpur, upon hearing the applicant, passed an order on 31/08/2010 thereby rejecting the application of the applicant (accused) observing as follows:

"if at all figure "1" was inserted later on that can be seen by naked eyes by any person if so."

6. Learned Advocate for the applicant submitted that despite such observation in the course of reasoned order, ultimately the application was rejected and an opportunity of adducing evidence was unreasonably denied to the applicant (accused). Learned Advocate for the applicant placed reliance upon ruling in the case of T. Nagappa Versus Y. R. Muralidhar reported in (2008) 5 SCC 633 : [2008 ALL MR (Cri) 1945 (S.C.)] wherein the Apex Court dealt with the identical contention regarding incomplete negotiable instrument and observed, in paragraph '7', as follows:

"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."

It was also observed that an accused has a right to fair trial and 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. At the same time it was also observed that there cannot be any doubt whatsoever that the accused should not be allowed unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant.

7. Learned Advocate on behalf of the respondent invited my attention to the ruling in the case of R. Jagadeesan v. N. Ayyasamy and Anr. reported in 2010 Cri. L. J. 2917, in which reference was made to the ruling of T. Nagappa's case by the Apex Court, and the Madras High Court had expressed difficulty to seek expert's opinion regarding age of the writings on the cheque. It was observed that the Apex Court was concerned with the right of the accused to have fair trial so as to send the document for comparison by an expert, but, it was never argued before the Apex Court that there are no experts available to examine the age. Under these circumstances, Madras High Court has also declined to allow the request for sending the document for ascertaining the age of the document. In the present case, the controversy is not only as regards age of the writing on the cheque but application (Exh. 91) is seeking expert's opinion from Government Examiner / Director of Forensic Science of Hyderabad on the points noted above. In these circumstances, although opinion as regards age of the writing on the cheque is not possible, the opinion regarding other points may be received. However, the accused cannot be allowed to protract hearing of the trial under Section 138 of the Negotiable Instruments Act, unreasonably. Hence, opinion, if any, from the expert as desired by the accused may be sought by him within a period of six months in the interest of fair trial. The accused deserves an opportunity to adduce evidence in defence or to rebut statutory presumptions available in favour of the complainant in the trial under Section 138 of the Negotiable Instruments Act. For all these reasons, the order passed by 7th Jt. JMFC and Special Court of u/s 138 of N.I. Act, Nagpur, on 31/08/2010, is set aside. The accused is given an opportunity to adduce evidence, in rebuttal, of the complainant's case by seeking expert's opinion as desired by him including Government Examiner / Director of Forensic Laboratory, Hyderabad. The period of six months to seek expert's opinion shall not at all be extended for any reason. Learned 7th Jt. JMFC and Special Court of u/s 138 of N.I. Act, Nagpur is directed to give an opportunity to the accused to adduce evidence in the pending trial.

The application is disposed of in above terms.

Ordered accordingly.