- (1.) THIS is petition under Section 482 Cr.P.C. praying for setting aside the order dated 20.8.2008 passed by Additional Sessions Judge No.2, Bikakner in Criminal Revision No.35/2008, whereby he has dismissed the revision petition and upheld the order dated 11.10.2007 passed by Chief Judicial Magistrate, Bikaner in Criminal Regular Case No.405/2005, vide, which, the Magistrate has rejected the application filed by the petitioner under Section 45 of the Evidence. While praying for setting aside the orders, the learned counsel for the petitioner submitted that the trial court has wrongly interpreted the order of this Court dated 16.7.2007 passed in S.B.Criminal Misc. Petition No.644/2007. By the said order, this Court had given opportunity to the petitioner to meet out the case instituted against him by allowing him to summon the Manager of the Bank. However, this Court held that in case, the petitioner is not able to produce the Bank Manager on fixed date, no further opportunity will be granted to the petitioner. The petitioner had duly served the summons, but the Bank Manager did not appear. Accordingly, the petitioner filed another S.B.Criminal Misc. Petition No.1248/2008, which was dismissed by this Court vide order dated 19.9.2008 in view of the last opportunity having been granted by this Court vide its order dated 16.7.2007. It is stated that the relief prayed for in the present petition is different. In the present case, an application was filed before the trial court for obtaining the report of Handwriting Expert and not for calling the Bank Manager, as such, the order passed by this court on 16.7.2007 in S.B.Criminal Misc. Petition No.644/2007 and the order dated 19.9.2008 passed in S.B.Criminal Misc. Petition No.1248/2008 do not apply to the relief sought in the present petition.
(2.) IT was further argued that during the course of cross- examination of the witnesses, it has been brought to the notice of the court that particulars of the cheque have not been filled-in by the same handwriting as that of the signatures. Meaning thereby, the amount, name of the party and date in the cheque is in the handwriting of the complainant himself. Thus, the report of the Handwriting Expert is necessary for just decision of the case. Learned counsel for the respondent while vehemently opposing the same submitted that the respondent-complainant has admitted that the signatures and the handwriting are of different person. Thus, there is no requirement for obtaining the report from Handwriting Expert. The application has been moved only to delay the proceedings. Heard . It is evident from the application filed by the petitioner that the prayer in the present case is for obtaining the report of the Handwriting Expert and not for calling the Manager of the Bank for evidence. Moreover, the impugned order dated 11.10.2007 dismissing the application and the order dated 20.8.2008 passed by Judicial Magistrate, Bikaner and Additional Sessions Judge No.2, Bikaner respectively have been challenged before this Court for the first time. Thus, the orders passed earlier, as mentioned above, have no application to the facts of the present case. The second question, therefore, that arises is as to whether calling of the Handwriting Expert is necessary for proper adjudication of the case or not? The defence put forth by the petitioner is that the respondent is in the habit of filing concocted complaints under Section 138 of the N.I. Act and that, the handwriting on the cheque on which various complainants have been filed is similar to the handwriting on the cheques, for which, the petitioner is facing prosecution. The petitioner, therefore, wants to prove that the handwriting on the cheque in question is of the respondent- complainant himself and he has misused the cheque. The argument of the respondent that in view of the admitted position that filling of the particulars of the cheque and the signature are by two separate ink and therefore, the requirement of Handwriting Expert is nullified, cannot be sustained as the effort of the petitioner is to show that the said particulars are filled not only by different hands but the said handwriting is of the complainant himself or of the person, who has filled other various cheques, on the basis of which, various other complaints have been instituted by the respondent. The Hon'ble Apex Court in the case of T.Nagappa Vs. Y.R.Muralidhar, reported in (2008)2 Supreme Court Cases (Cri) 677 while allowing an application seeking the examination by the Director of Forensic Science Laboratory for determining the age of signature held in para 7, 8 and 9 as under:- "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 recognised by Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure, which reads as under:- "243. Evidence for defence.-(1) * * * (2) If the accused, after he has 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 therefore, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant." Applying the test in the facts of this case, the petitioner intends to prove his case by calling the report of Handwriting Expert, which is, as discussed above, necessary for proper adjudication of the case.
(3.) IN view of the above, the present criminal misc. petition is allowed. The order dated 20.8.2008 passed by Additional Sessions Judge No.2, Bikaner and order dated 11.10.2007 passed by Chief Judicial Magistrate, Bikaner are quashed; and the petitioner is allowed to seek the report of Hand Writing Expert. The trial court is directed to proceed accordingly.;