T. Nagappa vs. Y.R. Muralidhar (2008) - Need for Opinion of Handwriting Expert

• Bench: S.B. Sinha, Lokeshwar Singh Panta
• Appellant: T. Nagappa
• Respondent:   Y.R. Muralidhar

Issue

1. Whether there is a need for an expert opinion from a handwriting expert in case of reviewing signatures in cheques.
2. Whether the application to special leave is maintainable.

Facts

1. The appellant filed an appeal under the provisions of Sec. 243 of the Criminal Procedure Code, 1973, for referring the cheque in question for examination by the Director of Forensic Science Laboratory for determining the age of his signature.
2. The appellant contended 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.
3. The petitions were dismissed by both the magistrate and the High Court respectively.
4. The magistrate and the High Court found no need to call upon a handwriting expert for reviewing the signature in the cheque.
5. The matter is now taken up by the Supreme Court.

Appellant’s contentions

1. The appellant approached the Supreme Court seeking an examination of the cheque given to him by the respondent to determine the age of the respondent’s signature in the cheque.
2. The appellant’s contentions were based on the provisions of Sec. 243 of the Criminal Procedure Code, 1973, which states that 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.
3. The appellant, in the present case, contended 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. The appellant contended that the magistrate and the High Court had rejected him the right to call for an examination of the cheque by the Director of Forensic Science Laboratory for determining the age of his signature, a right guaranteed to him under the provisions of Sec. 243 of the Criminal Procedure Code, 1973.

Respondent’s contention

1. The respondent quoted the judgment given by the magistrate and in the High Court.
2. The respondent stated that the magistrate had dismissed the appeal of the appellant quoting the judgment as follows “another important 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.”
3. Quoting the judgment given by the magistrate, stating that the present case did not warrant the need for a handwriting expert as per the provisions of Sec. 243, the respondent sought a dismissal of the appeal of the appellant.
4. The respondent contended that the High Court had accepted the signature on the cheque, taking into account the provisions of Sec. 20 of the Negotiable Instruments Act which covered the provisions regarding inchoate stamped instruments. The High Court ruled that the petitioner cannot dispute the contents of the cheque in view of the provisions of Section 20 of Negotiable Instruments Act.
5. The respondent contended that both the magistrate and the High Court found no need to call for a handwriting expert to review the signature in the cheque.

Judgment

The court set aside the impugned judgment and allowed for the appeal to be filed by the appellant.          

Relevant paragraphs

The crux of the case hinges on the provisions of Sec. 243 of the Criminal Procedure Code, 1973 and whether or not  there is a need for an expert opinion from a handwriting expert in case of reviewing signatures in cheques.

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.

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