2006 (12) TMI 545 - SC - Indian Laws

Application u/s 243 of CrPC - Permission to lead further defence evidence and forward the cheque in dispute to the Hand Writing Expert for opinion - Trial Magistrate as well as the High Court have observed that Section 243 CrPC deals with summoning of defence witnesses and cause any document or thing to be produced through him - But in the present case the accused has filed a petition without naming any person as witness or anything to be summoned which is to be sent for hand-writing expert for examination. HELD THAT - Section 243(2) is clear that a Magistrate holding an inquiry under the CrPC in respect of an offence triable by him does not exceed his powers u/s 243(2) if in the interest of justice he directs to send the document for enabling the same to be compared by a hand-writing 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 hand-writing 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. 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 courts should be jealous in seeing that there is no breach of them. Hence the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable. Thus we allow this appeal and set aside the order of the High Court passed in Criminal Revision Case by which the order of the Judicial Magistrate made in Crl. M. P. dismissing the application of the appellant u/s 243 CrPC was affirmed. Accordingly Crl. M.P. on the file of the Judicial Magistrate shall stand allowed. The learned Magistrate shall take appropriate steps for obtaining the report of handwriting expert on the point whether the signature in the cheque is that of the accused and shall proceed with the trial of the case in accordance with law. Since the case is very old further proceedings shall be taken with utmost expedition.

Summary

Issues: Scope of Magistrate's powers under Section 243 of Cr.P.C.

Analysis:

1. Background and Complaint: The case involves a complaint under Section 138 of the Negotiable Instruments Act, 1881, where a cheque issued by the appellant and her husband was dishonored. The complainant filed a case before the Judicial Magistrate, Tambaram, Chennai.

2. Initial Application and Trial: The appellant filed an application under Section 245 of Cr.P.C., raising objections to the complaint. The Magistrate dismissed this application, stating that the signature's genuineness could be questioned during the trial. The trial commenced, and the appellant later requested under Section 243 of Cr.P.C. to send the cheque for expert opinion on the signature's authenticity.

3. High Court and Revision Petition: The Magistrate and the High Court rejected the appellant's application, leading to a Criminal Revision Case in the High Court, which was dismissed. The appellant then appealed to the Supreme Court challenging these orders.

4. Contentions: The appellant argued that the dismissal of the application caused a miscarriage of justice as her defense was hindered without establishing the signature's authenticity. The respondent contended that the Magistrate acted judiciously, and the High Court's order was well-reasoned.

5. Supreme Court's Decision: The Supreme Court analyzed Section 243 of Cr.P.C., emphasizing that the accused has the right to present evidence in defense. The Court held that the Magistrate should have allowed the appellant's request to send the cheque for handwriting expert examination after the respondent closed her evidence. Denying this opportunity violated the appellant's right to a fair trial.

6. Conclusion and Order: The Supreme Court allowed the appeal, setting aside the High Court's order. The Magistrate was directed to obtain a handwriting expert's report on the signature's authenticity and proceed with the trial promptly. The Court clarified that its observations did not reflect an opinion on the case's merits, leaving the decision to the Magistrate's discretion.

This detailed analysis highlights the legal journey of the case, focusing on the interpretation of Section 243 of Cr.P.C. and the importance of ensuring a fair trial by allowing the accused to present evidence in their defense.