ARDHANARI SWAMI Vs. AYYAVOO

JUDGEMENT

(1.) CRL. R. C. No. 730 of 2005 has been preferred against the order passed in CRL. M. P. No. 5432 of 2003 in C. C. No. 55 of 2000 on the file of the judicial Magistrate No. 1, Attur, Salem. CRL. R. C. No. 731 of 2005 has been filed challenging the order passed in CRL. M. P. No. 5433 of 2003 in C. C. No. 140 of 2000 on the file of the Judicial Magistrate No. 1, Attur, Salem

(2.) BOTH the petitions have been filed under Section 47 of the Indian Evidence Act with a prayer to send the impugned cheque bearing cheque No. 76802 date 21. 12. 1999 being the subject matter of C. C. No. 55 of 2000 and cheque bearing 76803 dated 21. 12. 1999 being the subject matter of c. C. No. 140 of 2000 on the file of Judicial Magistrate No. 1, Attur, Salem for the purpose of ascertaining the genuineness of the cheque by way of comparing the signature in the cheque to that of the admitted signature of the accused/petitioner.

(3.) THE learned counsel appearing for the revision petitioner relying on a decision reported in Kalyani Baskar (Mrs)-v-M. S. Sampoornam (Mrs.) (2007)2 Supreme Court Cases 258) and would contend that in a case of similar nature, the petitions have been filed by the accused for getting opinion of a hand writing expert to ascertain the genuineness of signature on it, is liable to be allowed. THE learned counsel would rely on the observation in paragraph 12 of the above said ratio decidenti which runs as follows: " Section 243 (2) is clear that a Magistrate holding an inquiry under 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 evidene 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". THEre cannot be any two opinion in respect of the principle laid down in the above said dictum. But only difference is in the said ratio the accused had filed petition under Section 243 (2) of Cr. P. C. after the closure of the evidence on the side of the complainant. But in the present facts of the case, the petitioner has filed a petition under Section 47 of the indian Evidence Act and not under Section 243 (2) of Cr. P. C.