Someshwar Rao Vs. Samineni Nageshwar Rao & ANR.  INSC 1307 (29 July
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1353
OF 2009 [Arising out of S.L.P.(Crl.)No.6278 of 2007] G. Someshwar Rao
.....Appellant Versus Samineni Nageshwar Rao & Anr. .....Respondents WITH CRIMINAL
APPEAL NO. 1354 OF 2009 [Arising out of S.L.P.(Crl.)No.6838 of 2007]
Challenge in this appeal, which arises out of S.L.P.(Crl.)No.6278
of 2007 is to a judgment and order dated 22nd August 2007 passed by a learned
Single Judge of the High Court of Andhra Pradesh whereby and whereunder a
revision application, filed by the appellant herein, arising out of a judgment
and order dated 07th April 2007 passed by the Ist Additional 2 Judicial
Magistrate of First Class, Khammam dismissing an application filed by the
appellant for sending the disputed pronote and the cheque for examination of a
handwriting expert, was dismissed.
According to the appellant, an agreement to sell was entered into
in terms whereof one Bangi Venkanna and Y. Satyanarayana, brother-in-law of the
1st respondent agreed to purchase the appellant's share of the suit land for a
total consideration of Rs.12,00,000/- (Rupees twelve lacs) and out of the said
amount, a sum of Rs.4,00,000/- (Rupees four lacs) was paid by way of advance.
According to him, as the said agreement could not be given into effect to, the
same stood cancelled vide another agreement dated 22nd August 2004 and the
disputes stood amicably settled.
However, first respondent herein filed a complaint petition, being
C.C.No.77 of 2005, against the appellant for commission of an offence under
Section 138 of the Negotiable
Instruments Act, 1881 on the premise that the
appellant had executed one pronote on 21st October 2002 for a sum of
Rs.5,00,000/- (Rupees five lacs). It was also alleged that he also issued a
cheque bearing no.400707 on 25th October 2004 for another sum of Rs.6,00,000/-
(Rupees six lacs) purportedly in favour of the 1st respondent drawn on State
Bank of Hyderabad, Suryapet Branch. The said cheque, according to the said
respondent, when presented before the bank for having been honoured, was
returned with the remarks `Insufficient Funds'.
Appellant contended that the said pronote as also the cheque were
forged and fabricated. He also denied and disputed execution of the said
cheque. He, therefore, filed an application for examination of the said pronote
as also the cheque, which were marked as Exs.P-1 and P-2 respectively, by a
application, being Crl.M.P.No.757 of 2007 in C.C. No.77 of 2005, however, was dismissed
by an order dated 07th April 2007 by the learned 1st Addl. Judicial Magistrate,
relying on a decision of the High Court of Andhra Pradesh being Renu Devi Kedia
v. Seetha Devi reported in 2004(6) ALT 429 and another decision reported in
2005(1) ALD (Crl.) 161 (AP), stating :
In view of the decision of our own Hon'ble Court referred to above, there is
every possibility for a party to disguise his signatures and as the transaction
under Ex.P1 does not relate to Exs.P-1 and P-2, the same cannot be taken as an
admitted document for comparison of the signatures of the petitioner / accused.
Therefore, I see no useful purpose will be served in sending Exs.P-1 and P-2 to
the Expert for comparison. Hence, I do not find any valid reason to allow this
petition and accordingly, the petition is dismissed."
The High Court, as noticed hereinbefore, by reason of the impugned
order dated 22nd August 2007, dismissed the revision application filed against
the said order being Crl.M.P.No.757 of 2007, stating:
"On a perusal of the evidence of P.W.1, it is clear that P.W.1 has
specifically stated that Ex.P1- pronote and Ex.P2-cheque were executed by the
accused. That evidence has not been challenged in the cross-examination, except
putting a suggestion that one Venkanna put his signature in the name of the
accused. There is no specific denial that the accused did not sign on Exs.P1
and P2. Therefore, the petition under Section 45 of the Indian Evidence Act is
purported to have been filed only to drag on the matter. The calendar case is
of the year 2005 and in the absence of any specific denial with regard to the
execution of Ex.P1-pronote and issuance of Ex.P2-cheque, the question of
sending those documents to the expert for comparison with the admitted signatures
does not arise. The trial Court has rightly dismissed the said petition, and
therefore, I am of the view that the order under challenge does not suffer from
any legal infirmities so as to call for interference by this Court, and as
such, the present Criminal Revision Case is liable to be dismissed."
however, on or about 20th June 2007 filed another application, being Crl.M.P.
No.1325 of 2007 in C.C. No.77 of 2005, for the same purpose which, by reason of
an order dated 04th July 2007, was dismissed by the said learned Magistrate,
inter alia, holding :
rightly pointed out by the learned counsel for the respondent/complainant, this
court dismissed the petition in Crl.M.P.No.757 of 2007 by its order dated
7-4-2007 by turning down the request of the petitioner to send Ex.D1 documents
to the Handwriting Expert by holding that Ex.D1 does not relate to Exs.P1 &
P2 and, therefore, the same cannot be taken as an admitted documents for
comparison of the signatures of the petitioner."
Revision application filed by the appellant thereagainst has also
been dismissed by the High Court by a separate order passed on the same date,
viz., 22nd August 2007 in Crl.Revision Case No.995 of 2007 which has also been
challenged by the appellant by filing a separate Special Leave Petition being
S.L.P.(Crl.)No.6838 of 2007.
Mr. C. Mukund, learned counsel appearing on behalf of the
appellant would submit that having regard to the fact that the accused is
entitled to a fair trial, his application for examination by an expert within
the meaning of Section 45 of the Indian Evidence Act, 1872 for the purpose of establishing that a document, whereupon
the prosecution rests its case, being not genuine, the court was under a
constitutional obligation to ensure that he is permitted to take all defences.
reliance in this behalf has been placed on judgments of this Court in the case
of Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) (2007) 2 SCC 258 and in the
case of T. Nagappa v. Y.R. Muralidhar (2008) 5 SCC 633.
place on record that in spite of service no one has entered appearance on
behalf of respondent no.1.
Indisputably, an accused is entitled to a fair trial which is a
part of his fundamental right as guaranteed under Article 21 of the
Constitution of India. The concept, however, cannot be put to a straight jacket
formula. A court of law will have to consider each application filed by an
accused praying for comparison of his signature on a disputed document with his
admitted signature on its own merits. No hard and fast rule can be laid down
Section 243 of the Code of Criminal Procedure, 1973 provides for
grant of an opportunity to the defendant to lead evidence in his defence as
also to file a written statement, sub-section (2) whereof reads as under :
Evidence for defence.- (1) ... ... ...
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:
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.
7 (3) ...
of an accused under sub-section (2) of Section 243 of the Evidence Act is,
thus, not an absolute one. He cannot take recourse thereto for the purpose of
delaying the proceedings. An application filed by an accused must be for
subserving the cause of justice and not for subverting the same.
In the case of Kalyani Baskar (supra), this Court held as under :
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 because even in
adopting this course, the purpose is to enable the Magistrate 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 8 defence is a valuable right. Denial of that right means denial
of fair trial. It is essential that rules or procedure designed to ensure
justice should be scrupulously followed, and the courts should be jealous in
seeing that there is no breach of them.
decision has been followed by this Court in the case of T.
(supra) opining :
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 Parliament in terms of sub-section (2) of
Section 243 of the Code of Criminal Procedure, ....."
In this case, the pronote was issued in the year 2002. The cheque
was issued in the year 2004. The complaint petition was filed in the year 2004.
complainant examined his witnesses in between the period September 2006 and
February 2007. Appellant examined his own witnesses. They had been
cross-examined. The learned Magistrate noticed that even the legal notice
served upon him was not accepted by the appellant. The court, in the
aforementioned situation, held that the gap between execution of two signatures
is such where some variance is possible. Rightly or wrongly, his application
was dismissed by an order dated 07th April 2007. Immediately thereafter another
application was filed on 20th June 2007 which was not 9 maintainable as
allowing the same would have amounted to recall of an order passed by the
learned Magistrate himself being impermissible in law.
latter application only the document which was to be sent for comparison was
Evidently, he had filed two successive applications; the second
application was, thus, not maintainable. This it goes to show that he intended
to delay the disposal of the matter. He could have examined his own expert. He
may still do so for which, we are sure, the court shall grant him reasonable
opportunity. Even now, the court will be entitled to exercise its jurisdiction,
if it so thinks fit and proper in terms of Section 73 of the Indian Evidence Act.
Keeping in view the peculiar facts and circumstances of this case,
we are of the opinion that the interest of justice would be sub-served if an
opportunity is granted to the appellant to examine an expert at his own costs.
requisitions the services of an expert, the learned Judge would grant him an
opportunity to examine the disputed documents, submit a report and examine
himself as a witness in the case preferably on the same date. Such a step,
however, must be taken by the appellant within six weeks from date.
With the aforementioned observations and directions, these appeals
.....................................J. [S.B. Sinha]
.....................................J. [Cyriac Joseph]
July 29, 2009.