Accused filed Application before Magistrate under Section 245 raising preliminary objections - Accused cannot be convicted without giving opportunity to present her evidence Denial amounts to unfair trial .

Citation

2007(2) CTC 364

2007(2) SCC 258

Kalyani Baskar vs M.S.Sampoornam

Code of Criminal Procedure, 1973 (2 of 1974), Section 243(2)- Negotiable Instruments Act, 1881 (26 of 1881), Section 138-Cheque - Dishonour of cheque due to insufficient funds Complaint Accused filed Application before Magistrate under Section 245 raising preliminary objections (a) accused not signed cheque nor issued cheque to complainant (b) cheque in question was drawn from individual account of accused (c) accused and her husband could not have jointly signed and issued cheque (d) signature of cheque may be sent for expert opinion to ascertain bona fide - Neither Appellant nor her husband owe any debt to complainant - Duty and power of Magistrate when there is dispute regarding signature- Magistrate to send cheque in question to expert opinion to ascertain correctness and genuineness of signature of appellant - Categorical denial of signature at initial stage of appearance Magistrate holding enquiry under Cr.P.C. in respect of offence triable by him does not exceed his powers under Section 243(2), if in interest of justice Magistrate sends document for enabling same to be compared by hand writing expert -Purpose is to enable Magistrate to compare disputed signature or writing with admitted writing or signature of accused in order to reach his own conclusion with assistance of expert Denial to send document for examination and opinion of hand writing expert amounts to deprival of opportunity to appellant for rebutting her case- Appellant cannot be convicted without giving opportunity to present her evidence Denial amounts to unfair trial - Fair trial includes fair and proper opportunity allowed by Law to prove innocence Adducing evidence in support of defence is available right- Denial of that right means denial of fair trial Rules and procedure should be scrupulously followed Magistrate should have granted request for sending cheque in question for opinion of hand writing expert after respondent has dosed evidence unless he thinks that object of appellant is vexatious or delaying criminal proceedings- Order of High Court upholding order of Magistrate set aside as erroneous and unsustainable - Appeal allowed and order of High Court in Cr.R.P. No. 335 of 2002 set aside- Magistrate shall take appropriate steps for obtaining report of handwriting expert on point whether signature on cheque is that of accused and shall proceed with trial in accordance with Law. [Para 12 & 13]