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G. Someshwar Rao v. Samineni Nageshwar Rao And Another
Factual and Procedural Background
The dispute originates from an aborted land sale. The appellant alleged that after receiving an advance of Rs 4,00,000 under an agreement to sell his share in immovable property, the transaction was cancelled by a subsequent agreement dated 22-8-2004 and all disputes were “amicably settled.” Despite this, the first respondent lodged Complaint Case No. 77 of 2005 under Section 138 of the Negotiable Instruments Act, 1881, asserting that:
- the appellant executed a pronote on 21-10-2002 for Rs 5,00,000, and
- issued Cheque No. 400707 on 25-10-2004 for Rs 6,00,000 drawn on State Bank of Hyderabad, which was returned marked “Insufficient Funds.”
The appellant denied execution, calling both instruments forged, and sought their examination by a handwriting expert. The First Additional Judicial Magistrate, Khammam, dismissed his application on 7-4-2007. A revision before the High Court of Andhra Pradesh was also dismissed on 22-8-2007. A second, similar application (Crl. MP No. 1325 of 2007) was likewise rejected, and that order, too, was affirmed by the High Court the same day. The present appeal arises from Special Leave Petition (Criminal) No. 6278 of 2007 challenging those concurrent dismissals.
Legal Issues Presented
- Whether, in the interests of a fair trial, the accused in a prosecution under Section 138 NI Act is entitled to have the disputed pronote and cheque sent for expert handwriting examination under Section 45 of the Evidence Act and Section 243(2) CrPC.
- Whether the Magistrate and High Court erred in rejecting successive defence applications as dilatory when assessing the accused’s statutory and constitutional rights.
Arguments of the Parties
Appellant's Arguments
- The right to a fair trial under Article 21 includes the right to adduce expert evidence; denial violates Section 243(2) CrPC.
- Expert comparison is essential to establish alleged forgery of the pronote and cheque—the very foundation of the prosecution.
- Reliance placed on Supreme Court precedents Kalyani Baskar v. Sampoornam and T. Nagappa v. Y.R. Muralidhar, which affirm the accused’s entitlement to such an opportunity.
Respondent's Arguments
The opinion does not contain a detailed account of the respondent’s legal arguments; the respondent did not appear before the Supreme Court.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Smt. Renu Devi Kedia v. Smt. Seetha Devi (2004) 6 ALT 429 (AP) | Possibility of an accused disguising his signature; limited utility of expert comparison where no admitted signatures are available. | Relied upon by the Magistrate to dismiss the first application for expert examination. |
| Neelakantappa v. M. Munirathnam & Anr. (2005) 1 ALD (Cri) 161 (AP) | Similar reasoning on signature disguise and lack of admitted documents for comparison. | Also cited by the Magistrate for dismissing the application. |
| Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) (2007) 2 SCC 258 | Section 243(2) CrPC empowers a Magistrate to send disputed documents for expert opinion; refusal may deny a fair trial. | Invoked by the Supreme Court to underline that the right is not absolute but must be balanced against delay. |
| T. Nagappa v. Y.R. Muralidhar (2008) 5 SCC 633 | Reiterates the accused’s fundamental right to defend himself, including adducing expert evidence. | Cited to affirm that fair-trial rights exist, yet can be regulated to prevent abuse. |
Court's Reasoning and Analysis
The Supreme Court accepted that a fair trial is a constitutional imperative, but emphasised that the entitlement to an expert examination under Section 243(2) CrPC is not unqualified. Key analytical steps were:
- Balancing Fair-Trial Rights and Preventing Delay: The Court held that applications under Section 243(2) must promote, not subvert, justice; repeated or strategic filings may justify refusal.
- Procedural History Indicates Dilatory Intent: The appellant’s first application was dismissed on 7-4-2007; a second, nearly identical, application filed on 20-6-2007 was “not maintainable” because it effectively sought review of the earlier order, demonstrating a tendency to delay.
- Alternative Avenues Still Open: The Court noted that the appellant could have produced his own handwriting expert, and reiterated that courts retain power under Section 73 of the Evidence Act to compare signatures.
- Qualified Relief: Although the appeals lacked merit regarding the challenge to earlier refusals, the Court exercised its equitable jurisdiction to allow the appellant, at his own cost, to engage an expert within six weeks; the trial court must then permit examination of the documents and the expert’s testimony, preferably on the same day.
Holding and Implications
Appeals DISMISSED. However, the Supreme Court directed that the appellant may, within six weeks, engage a handwriting expert at his own expense; the trial court shall facilitate examination of the disputed pronote and cheque and record the expert’s evidence.
Implications: The judgment balances the accused’s fair-trial rights with the need to avoid tactical delays. It underscores that while Section 243(2) CrPC confers a valuable defence right, courts may regulate its exercise. No new legal precedent is set, but the decision reinforces prudent judicial discretion when dealing with successive or dilatory applications.
S.B Sinha, J.— Leave granted. The challenge in this appeal, which arises out of SLP (Criminal) No. 6278 of 2007 is to a judgment and order dated 22-8-2007 passed by a learned Single Judge of the High Court of Andhra Pradesh whereby and whereunder a revision application, filed by the appellant herein, arising out of a judgment and order dated 7-4-2007 passed by the First Additional Judicial Magistrate, First Class, Khammam dismissing an application filed by the appellant for sending the disputed pronote and the cheque for examination by a handwriting expert, was dismissed.
2. According to the appellant, an agreement to sell was entered into in terms whereof one Bangi Venkanna and Y. Satyanarayana, the brother-in-law of the first respondent agreed to purchase the appellant's share of the suit land for a total consideration of Rs 12,00,000 (Rupees twelve lakhs) and out of the said amount, a sum of Rs 4,00,000 (Rupees four lakhs) was paid by way of advance. According to him, as the said agreement could not be given effect to, the same stood cancelled vide another agreement dated 22-8-2004 and the disputes stood amicably settled.
3. However, the first respondent herein filed a complaint petition, being CC No. 77 of 2005, against the appellant for commission of an offence under Section 138 of the Negotiable Instruments Act, 1881 on the premise that the appellant had executed one pronote on 21-10-2002 for a sum of Rs 5,00,000 (Rupees five lakhs). It was also alleged that he also issued a cheque bearing No. 400707 on 25-10-2004 for another sum of Rs 6,00,000 (Rupees six lakhs) purportedly in favour of the first respondent drawn on State Bank of Hyderabad, Suryapet Branch. The said cheque, according to the said respondent, when presented before the Bank for having been honoured, was returned with the remarks “Insufficient Funds”.
4. The appellant contended that the said pronote as also the cheque were forged and fabricated. He also denied and disputed execution of the said cheque. He, therefore, filed an application for examination of the said pronote as also the cheque, which were marked as Exts. P-1 and P-2 respectively, by a handwriting expert. The said application, being Criminal MP No. 757 of 2007 in CC No. 77 of 2005, however, was dismissed by an order dated 7-4-2007 by the learned First Additional Judicial Magistrate, relying on a decision of the High Court of Andhra Pradesh being Renu Devi Kedia v. Seetha Devi (2004) 6 ALT 429 (AP) and another decision in Neelakantappa v. M. Munirathnam (2005) 1 ALD (Cri) 161 (AP) stating:
“12. In view of the decision of our own Hon'ble Court referred to above, there is every possibility for a party to disguise his signatures and as the transaction under Ext. D-1 does not relate to Exts. P-1 and P-2, the same cannot be taken as an admitted document for comparison of the signatures of the petitioner-accused. Therefore, I see no useful purpose will be served in sending Exts. P-1 and P-2 to the expert for comparison. Hence, I do not find any valid reason to allow this petition and accordingly, the petition is dismissed.”
5. The High Court, as noticed hereinbefore, by reason of the impugned order dated 22-8-2007, dismissed the revision application filed against the said order being Crl. MP No. 757 of 2007 stating:
“On a perusal of the evidence of PW 1, it is clear that PW 1 has specifically stated that Ext. P-1, pronote and Ext. P-2, cheque were executed by the accused. That evidence has not been challenged in the cross-examination, except putting a suggestion that one Venkanna put his signature in the name of the accused. There is no specific denial that the accused did not sign on Exts. P-1 and P-2. Therefore, the petition under Section 45 of the Evidence Act is purported to have been filed only to drag on the matter. The case is of the calendar year 2005 and in the absence of any specific denial with regard to the execution of Ext. P-1, pronote and issuance of Ext. P-2, cheque, the question of sending those documents to the expert for comparison with the admitted signatures does not arise. The trial court has rightly dismissed the said petition, and therefore, I am of the view that the order under challenge does not suffer from any legal infirmities so as to call for interference by this Court, and as such, the present criminal revision case is liable to be dismissed.”
6. The appellant, however, on or about 20-6-2007 filed another application, being Crl. MP No. 1325 of 2007 in CC No. 77 of 2005, for the same purpose which by reason of an order dated 4-7-2007 was dismissed by the said learned Magistrate, inter alia, holding:
“As rightly pointed out by the learned counsel for the respondent complainant, this court dismissed the petition in Crl. MP No. 757 of 2007 by its order dated 7-4-2007 by turning down the request of the petitioner to send Ext. D-1 documents to the handwriting expert by holding that Ext. D-1 does not relate to Exts. P-1 and P-2 and, therefore, the same cannot be taken as an admitted document for comparison of the signatures of the petitioner.”
7. The revision application filed by the appellant thereagainst has also been dismissed by the High Court by a separate order passed on the same date viz. 22-8-2007 in Criminal Revision Case No. 995 of 2007 which has also been challenged by the appellant by filing a separate special leave petition being SLP (Criminal) No. 6838 of 2007.
8. Mr C. Mukund, learned counsel appearing on behalf of the appellant would submit that having regard to the fact that the accused is entitled to a fair trial, his application for examination by an expert within the meaning of Section 45 of the Evidence Act, 1872 for the purpose of establishing that a document, whereupon the prosecution rests its case, being not genuine, the court was under a constitutional obligation to ensure that he is permitted to take all defences. Strong reliance in this behalf has been placed on judgments of this Court in Kalyani Baskar v. M.S Sampoornam (2007) 2 SCC 258 and in T. Nagappa v. Y.R Muralidhar (2008) 5 SCC 633.
9. We may place on record that in spite of service no one has entered appearance on behalf of Respondent 1.
10. Indisputably, an accused is entitled to a fair trial which is a part of his fundamental right as guaranteed under Article 21 of the Constitution of India. The concept, however, cannot be put to a straitjacket formula. A court of law will have to consider each application filed by an accused praying for comparison of his signature on a disputed document with his admitted signature on its own merits. No hard-and-fast rule can be laid down therefor.
11. Section 243 of the Code of Criminal Procedure, 1973 provides for grant of an opportunity to the defendant to lead evidence in his defence as also to file a written statement, sub-section (2) whereof reads as under:
“243. Evidence for defence.—(1)***
(2) 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:
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.”
The right of an accused under sub-section (2) of Section 243 of the Code of Criminal Procedure, 1973 is, thus, not an absolute one. He cannot take recourse thereto for the purpose of delaying the proceedings. An application filed by an accused must be for subserving the cause of justice and not for subverting the same. In Kalyani Baskar (2007) 2 SCC 258 this Court held as under:
“12. Section 243(2) is clear that a Magistrate holding an inquiry under CrPC 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 the courts should be jealous in seeing that there is no breach of them.”
12. Kalyani Baskar (2007) 2 SCC 258 has been followed by this Court in T. Nagappa (2008) 5 SCC 633 opining:
“8. 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 recognised by Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure….”
13. In this case, the pronote was issued in the year 2002. The cheque was issued in the year 2004. The complaint petition was filed in the year 2004. The complainant examined his witnesses in between the period September 2006 and February 2007. The appellant examined his own witnesses. They had been cross-examined. The learned Magistrate noticed that even the legal notice served upon him was not accepted by the appellant. The court, in the aforementioned situation, held that the gap between execution of two signatures is such where some variance is possible. Rightly or wrongly, his application was dismissed by an order dated 7-4-2007. Immediately thereafter another application was filed on 20-6-2007 which was not maintainable as allowing the same would have amounted to recall of an order passed by the learned Magistrate himself being impermissible in law. In the latter application only the document which was to be sent for comparison was changed.
14. Evidently, the appellant had filed two successive applications; the second application was, thus, not maintainable. This itself goes to show that he intended to delay the disposal of the matter. He could have examined his own expert. He may still do so for which, we are sure, the court shall grant him reasonable opportunity. Even now, the court will be entitled to exercise its jurisdiction, if it so thinks fit and proper in terms of Section 73 of the Evidence Act, 1872.
15. Keeping in view the peculiar facts and circumstances of this case, we are of the opinion that the interest of justice would be subserved if an opportunity is granted to the appellant to examine an expert at his own costs. If he requisitions the services of an expert, the learned Judge would grant him an opportunity to examine the disputed documents, submit a report and examine himself as a witness in the case preferably on the same date. Such a step, however, must be taken by the appellant within six weeks from date.
16. With the aforementioned observations and directions, these appeals are dismissed.
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