ORDER
K.N. Basha, J.
1. The learned Counsel for the revision petitioner submits that the petitioner has come forward with this revision challenging the order of the learned Magistrate, dismissing the petition filed by the petitioner under Section 45 of the Indian Evidence Act with a prayer to send the disputed cheque dated 15-6-2004.
2. The learned Counsel for the petitioner submits that the petitioner is facing the trial for the alleged offence under Section 138 of the Negotiable Instruments Act. It is contended by the learned Counsel for the petitioner that the petitioner is disputing his signature in the alleged cheque. As such, he has come forward to the petition for-sending the same for expert opinion, It is also submitted by the learned Counsel for the petitioner that as far as the cheque is concerned, only the complainant has filed the proof affidavit and immediately he was filed objection for sending the disputed cheque for expert opinion under Section 45 of the Indian Evidence Act. It is submitted by the learned Counsel for the petitioner that the learned Magistrate has simply dismissed the petition only on the ground that the petitioner has come forward with the belated petition and no other reason was assigned by the learned Magistrate.
3. The learned Counsel for the petitioner also placed reliance decision of the Honourable Supreme Court reported in 2006 (13) Scale 459 (Mrs. Kalyani Baskar v. Mrs. M.S. Sampooranam), to the proposition that the learned Magistrate shall take appropriate steps for obtaining the report of the handwriting expert, once the signature in the cheque is disputed by the accused and the accused has come forward with a plea to send the same for expert opinion.
3A. Mr. K. Rajasekaran, learned Counsel appearing for the respondent pointed out. that the learned Magistrate has assigned the reason to the effect that the cheque is issued in April 2004 and the document claimed by the accused to be sent for comparing the signatures is the old document relating to the year 1991 and therefore it is submitted by the learned Counsel appealing for the respondent that the learned Magistrate has assigned reasonable grounds for rejecting the application,
4. I have carefully considered the contentions put forth by the learned Counsel on either side and also perused the impugned order and other relevant materials available on record.
5. A perusal of the record shows that the revision petitioner who is facing the trial for the alleged offence under Section 138 of the Negotiable Instruments Act, has filed application before the learned Magistrate under Section 45 of the Indian Evidence Act with a prayer to send the disputed cheque to the Handwriting expert for his opinion. As such, the revision petitioner is disputing his signature in the cheque.
6. A perusal of the impugned order shows that the learned Magistrate has dismissed the petition only on the ground that the petitioner has come forward with the belated petition. Further, the learned Counsel for the respondent has pointed out that there is also another reason given by the learned Magistrate while dismissing the petition, namely that the petitioner/accused is seeking relief of sending the disputed cheque in this case to be compared with the document related 10 the year of 1991 and therefore such prayer cannot be allowed as the signature is not contemporaneous.
7. It is pertinent to note that the Honourable Supreme Court in the latest decision reported in 2006 (13) Scale 459 (Mrs. Kalyani Baskar v. Mrs. M.S. Sampooranam) held as follows ;
11. To appreciate the reasoning recorded by the High Court in its impugned order, it is useful to refer to the provisions of Section 243 of Cr. P. C. which reads as follows:
243. Evidence for defence : (1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement the Magistrate shall file it with the record.
(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.
(3) The Magistrate may, before summoning any witness on an application under Sub-section (2) require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court.
12. Section 243(2) is clear that a Magistrate holding an inquiry under the Cr.P.C. 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 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 Courts should be jealous in seeing that there is no breach of them. We have not been able to appreciate the view of the learned Judge of the High Court that the petitioner has filed application under Section 243, Cr.P.C. Without naming any person as witness or anything to be summoned, which are to be sent for handwriting expert for examination. As noticed above, Section 243(2), Cr.P.C. Refers to a stage when the prosecution closes its evidence after examining the witnesses and the accused has entered upon his defence. The appellant in this case requests for sending the cheque, in question, for the opinion of the handwriting expert after the respondent has closed her evidence, the Magistrate should have granted such a request unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. In the circumstances, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable.
8. I am of the considered view that the above principle laid down by the Apex Court in the decision cited supra is squarely applicable to the facts of the present case and the question involved in this matter and as such I am inclined to allow the revision petition and the order passed by the learned Magistrate dated 3-1-2006 is set aside. It is also made clear that the learned Magistrate shall send the disputed cheque dated 15-6-2004 for comparing the same with the admitted signature of the petitioner/accused, in the event of the petitioner producing the relevant documents either by way of an affidavit or other form of document containing the signature of the petitioner as of now.
9. With this observation the revision case is allowed.