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2016 (5) TMI 1583 - HC - Indian LawsDishonor of Cheque - comparison of handwriting of the applicant-accused by Handwriting Expert - requirement of stamping or not - Section 45 of the Evidence Act - HELD THAT:- I am at a complete loss to understand as to on what basis the learned Magistrate applied Section 20 of the Act. Section 20 speaks about a stamped, incomplete, inchoate instrument delivered to any person with prima facie authority to complete the instrument and encash the same. The learned Lahore High Court in A.R. Dower v. Sohan Lal [1937 (4) TMI 25 - LAHORE HIGH COURT] held that Section 20 relating to the encashability of the inchoate stamped instrument will not apply to the cheque as it does not require stamp. Division Bench of the learned Kerala High Court in C.T. Joseph v. I.V. Philip [2001 (3) TMI 1081 - KERALA HIGH COURT] has observed that Section 20 of the Negotiable Instruments Act will not apply to the cheque as the same does not require any stamp under the Stamp Act and the aforesaid provision would apply to other incomplete, inchoate instruments which require stamp under the Stamp Act. It was only if the Magistrate was of the opinion that the object of the petitioner in moving the application for comparison of the signatures was vexatious and had no relevance in the proceedings could he have refused the permission. But, once this was not the case, then I see no reason why the learned Magistrate ought not to have sent the documents for examination enabling the same to be compared by the Handwriting Expert which would facilitate in arriving at a correct decision - the petitioner cannot be convicted without an opportunity of being given a fair chance to present his evidence and if it is denied then there would be no "fair trial". After-all "fair trial" includes fair and proper opportunities allowed by law to prove the parties innocence. Adducing evidence in support of the defence is a valuable right. The order passed by the learned Magistrate is not sustainable in the eyes of law and is accordingly set aside. Consequently, the application filed by the petitioner is allowed and the cheque in question is directed to be sent for comparison of the handwriting by the Handwriting Expert to be appointed by the learned trial Magistrate - Petition allowed.
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