K.S. ZABIULLAH SHARIEFF Vs. SYED IMTIAZ AHMED

JUDGEMENT

(1.) Heard the learned counsel for the petitioner.

(2.) The petitioner is said to be accused of an offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (N.I. Act). It transpires that the petitioner had contested the matter and has vehemently denied that the cheque was issued on his account or that it bore his signature, etc., and after the evidence of the complainant was tendered, the petitioner sought to tender evidence and before tendering his evidence, had filed an application under Sec. 45 of Indian Evidence Act, 1872, seeking that the Court refer the document, namely, the cheque in question for the opinion of an expert as to whether the signature was that of the petitioner. The Court having rejected that application, the petitioner is before this Court.

(3.) Strong reliance is placed on a judgment of the Supreme Court in the case of Mrs. Kalyani Baskar Vs. Mrs. M.S. Sampoornam passed in Appeal (Crl.) No. 1293/2006 dated 11/12/2006 reported in 2007 (1) NIJ 246 (SC). In the said case, the complainant had alleged that the appellant and her husband had committed an offence punishable under Sec. 138 of N.I. Act, and that the appellant along with her husband, had jointly signed and issued a cheque for discharge of a legal liability and that it had been dishonoured for insufficient funds and though notice was served upon both the accused, there was no reply and after complying with all the formalities, complaint was lodged before the competent Court. The accused appeared and filed an application under Sec. 245 of the Code of Criminal Procedure, 1973, raising certain preliminary objections, firstly, that the accused had not signed the cheque nor issued it to the complainant; secondly, that the cheque in question was drawn from the individual account of the accused and therefore, as alleged by the complainant, the accused and her husband could not have jointly signed and issued the cheque; thirdly that the signature on the cheque may be sent for an expert opinion to ascertain the bona fides of the same; and fourthly, that neither the appellant nor her husband owed any debt to the respondent. The Magistrate dismissed the application on the ground that the genuineness of the signature could be questioned only at the time of trial of the complaint and thereafter trial had commenced and evidence of the respondent was recorded. The banker deposed that he had not verified the signature before returning the cheque in question, as dishonoured. In those circumstances, during the trial, the appellant had preferred an application and that having been rejected, the Supreme Court had opined that it ought not to have done so and that the appellant is entitled to rebut the case of the respondent and if the cheque relied on by the respondent for initiating criminal proceeding against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for examination and opinion of the handwriting expert would deprive the appellant of an opportunity for 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. While arriving at this reasoning, Court had also observed the scope and effect of Sec. 243 of The Code of Criminal Procedure and therefore has opined that the Court could not have denied the application.