Nagappa Vs. Y.R. Muralidhar  INSC 710 (24 April 2008)
S.B. Sinha & Lokeshwar Singh Panta
REPORTABLE CRIMINAL APPEAL NO. 707 OF 2008 (Arising out of SLP (Crl.)
No.6933 of 2007) S.B. Sinha, J.
1. Leave granted.
2. Appellant is facing criminal charges before the Court of XV Additional
Chief Metropolitan Magistrate, Bangalore in C.C. No.6835 of 2005 purported to
be under Section 138 of the Negotiable Instruments Act. He is said to have issued a cheque in favour of the respondent for a sum of
Rs.7,50,000/- on 8.10.2004 which on depositing in the Bank was allegedly
returned unpaid. A complaint petition was filed by the respondent contending
that the appellant had committed an offence under Section 138 of the Negotiable
3. On or about 1.8.2006, the appellant filed an application under Section
243 of the Code of Criminal Procedure wrongly mentioned as Section 293 of the
Code of Criminal Procedure, 1973 for referring the cheque in question for
examination by the Director of Forensic Science Laboratory for determining the
age of his signature, contending that the respondent had obtained a signed
cheque from him in the year 1999 as a security for a hand loan of Rs.50,000/-
which had been paid back, but instead of returning the cheque, the same has
been misused by entering a huge amount, which he did not owe to the appellant.
4. By reason of an order dated 29.11.2006, the learned Magistrate dismissed
the said application, opining :
"Another main contention of the accused is that the cheque was signed
in the year 1999 and the writing appearing on the cheque has been filled up in
the month of August, October and December 2004. The accused is at liberty to prove the said aspect by leading a cogent
evidence. In my opinion, to prove the age of the writing on Exp-2 it is not
necessary to send the exp-2 to the handwriting expert. Thus, viewing from any
angle, I do not find any good reason to refer the Exp-2 to the handwriting
expert as prayed in the petition. Hence I answer the above said point in the negative."
5. A revision application filed thereagainst has also been dismissed by the
High Court, stating :
"It is the case of the accused/petitioner herein that the signed cheque
of the accused is misused by the petitioner by filling contents therein after about
5 years. According to the petitioner the cheque is of the year 1999 and the
complainant has filled up the cheque by dating the said as 9.10.2004. Hence to
ascertain the age of the cheque, the application came to be filed by the
petitioner which is rejected.
The evidence of DW-2, the Assistant Manager of UCO Bank, Jayanagar Branch,
Bangalore coupled with the recital of Ex.D-11 i.e. the register pertaining to
issuance of cheque book disclosed that the cheque containing Ex.P-2 (cheque
leaf) was issued by the UCO Bank to the accused on 6.5.1997. If it is so,
ascertaining the age of the cheque does not arise for consideration. In this matter, the signature on the cheque is admitted. If it is so the
petitioner cannot dispute the contents of the cheque in view of the provisions
of Section 20 of Negotiable Instruments Act. Hence there is no need to refer
the cheque for Hand Writing Expert."
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
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.
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) (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."
8. 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.
9. 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.
The issue now almost stands concluded by a decision of this Court in Kalyani
Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) [(2007) 2 SCC 258] (in which one of us,
L.S. Panta, J., was a member) wherein it was held :
"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."
10. However, it is not necessary to have any expert opinion on the question
other than the following :
"Whether the writings appearing in the said cheque on the front page is
written on the same day and time when the said cheque was signed as
"T.Nagappa" on the front page as well as on the reverse, or in other
words, whether the age of the writing on Ex.P2 on the front page is the same as
that of the signature "T.Nagappa" appearing on the front as well as
on the reverse of the Cheque Ex.P2?"
11. Ms. Suri, however, pointed out that the application of the appellant
being one under Section 293 of the Code of criminal Procedure was rightly
rejected. It is now a well settled principle of law that non-mentioning or
wrong mentioning of provision of law would not be of any relevance, if the
Court had the requisite jurisdiction to pass an order.
12. For the aforementioned reasons, the impugned judgment cannot be
sustained. It is set aside accordingly with the aforementioned directions.
Appeal is allowed.