Venugopala Gowda, J.

Petitioner is facing criminal charge before the J.M.F.C, Ramdurga in C.C No. 160/2007 (P.C No. 35/2007) for an offence punishable u/Sec. 138 of the N.I Act (Act for short). It is alleged that, the petitioner issued a cheque in favour of the respondent for a sum of Rs. 7,20,000/- on 23/03/2007, which on deposit in Bank-was returned unpaid. A complaint was filed by the respondent u/Sec. 200 Cr.P.C alleging that the petitioner has committed an offence u/Sec. 138 of the Act. Complainant deposed as P.W.I Two other witnesses we reexamined as P.Ws 2 and 3. The case was posted for examination of the accused u/Sec. 313 Cr.P.C The petitioner who is the accused, has filed an application for referring the cheque in question for an examination by an expert contending that he had issued a blank cheque and a bond paper to the complainant, who has written thereon the amount etc. according to his choice and the writings in the cheque and the bond are not in his handwriting i.e, the date, the figures, etc., which have been written in a different ink and hence it is very much necessary to send the cheque and the blank bond paper for the opinion of the hand writing expert. According to the accused, the cheque and the bond paper have been mis-used by the complainant by entering a huge amount which he did not owe to the complainant. Objections were filed by the complainant to the application of the accused, wherein it was contended that the accused in order to return the hand loan has issued the cheque for Rs. 7,20,000/- in favour of the complainant and that the accused has also executed a promissory note and it is in order to discharge the hand loan, the cheque was issued, which was returned with an endorsement of the Bank “Insufficient funds”. In the circumstances, it is not necessary to send the cheque and the bond paper for the opinion of the hand-writing expert. Learned Magistrate, for the reasons recorded by him, did not find merit in the application and dismissed the same. While dismissing the application it was observed that, the accused has admitted the signature on the cheque and hence naturally the burden is shifted on the accused to disprove the version of the complainant and by merely sending the cheque or the document to the hand writing expert, no purpose will be served. After making a reference to the decisions of this Court and that of the Madras and Kerala High Courts, it was held that, it is not necessary to send for examination the cheque by a hand writing expert, in view of admitting of the signature on the cheque.

2. The petitioner, questioned the said order by filing a Revision Petition in the Sessions Court. Learned Sessions Judge dismissed the Revision Petition by observing that, the accused has specifically admitted his signature on the cheque and hence it is not necessary to send the cheque for expert opinion since the burden shifts on the accused to disprove the contention of the complainant that he has advanced hand loan of Rs. 7,20,000/- and to discharge this debt, the accused issued the cheque.

3. This petition has been filed u/Sec. 482 Cr.P.C to quash the said orders and to direct the Trial Court to accord permission to the accused to get the impugned cheque and the bond paper examined by an expert.

4. Sri. Shriharsh. A. Neelopant, Learned Advocate appearing for the petitioner contended that, by dismissing the application, the Trial Court has denied reasonable opportunity to the accused to establish his defence and to disprove the claim of the complainant and thus, it has acted illegally in the matter. He further contended that, the Revisional Court has mechanically repeated the order passed by the Trial Judge and there is no independent application of mind and the consideration of the case. Learned Counsel pointed out that, it was not the case of the accused at any point of time that he had issued a valid cheque nor executed a valid bond/pronote in favour of the complainant and the case of the accused having been that, a blank cheque and bond was issued to the complainant, reasonable opportunity should have been granted to establish the defence. He contended that, the impugned orders are illegal.

5. Per contra, Sri. B.V Somapur, Learned Counsel for the respondent/complainant contended that the line of cross-examination of P.Ws 1 to 3 would clearly indicate that, the loan transaction between the parties is not in dispute. It was pointed out that, suggestion was made to P.W.1 to the effect that only Rs. 2,50,000/- is due by the accused and that as on the date of cross-examination the accused is ready to pay the amount of Rs. 2,50,000/-. It was pointed out that, while cross-examining P.W.2, suggestion made is to the effect that, the accused is due only Rs. 3,50,000/-. It was contended that, the accused having thus admitted the loan transaction, the dispute if any, being only with regard to the amount and the cheque issued towards discharge of debt being thus not in dispute, no case is made out for grant of relief, in view of which the application was dismissed, which was affirmed by the Revision Court and hence no case exits for interference u/Sec. 482 of Cr.P.C Reliance was placed on a decision of this Court, in the case of H.M Satish v. B.M Ashok . 2007 2 Law Journal 479.

6. In view of the rival contentions, the point for consideration is;

“Whether the Courts below have acted legally in declining to refer the cheque to an expert for examination? “

7. In T. Nagappa v. Y.R Muralidhar . 2008 5 SCC 633, the facts of the case which came up for consideration were that, T. Nagappa, the appellant, was facing a criminal charge for an offence punishable u/Sec. 138 of the Act on the allegation that he had issued a cheque in favour of the respondent which on depositing was returned unpaid upon which the complaint was filed and during the pendency of the complaint, the accused filed an application u/Sec. 243 Cr.P.C for referring the cheque in question for examination of the Director, Forensic Laboratory for determining the age of his signature, contending that, the respondent had obtained a signed cheque from him in the year 1999 as a security for a hand loan of Rs. 50,000/-, which has been paid back, but instead of returning the cheque, the same has been mis-used by entering a huge amount of Rs. 7,50,000/-, which he did not owe to the complainant. The application was dismissed by the Magistrate and was affirmed in revision by this Court by relying upon Sec. 20 of the Act. The matter having been taken up to the Apex Court, it was held that, by virtue of Sec. 20 of the Act, only a right has been created in the holder of the cheque, subject to the conditions mentioned therein, thereby only a prima-facie authority is granted, inter alia to complete an incomplete negotiable instrument. It was pointed out, that the proviso has a rider, namely no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid therein. It was further held that, when a contention has been raised that the complainant has mis-used the cheque, even in a case where presumption can be raised u/Sec. 118(a) or 139 of the Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof, as the law places the burden on the accused, he must be given an opportunity to discharge it. By holding so, the impugned orders were set aside and it was held that, adducing evidence in support of the defence is a valuable right and the denial of that right means denial of fair trial and it was also pointed out that, it is essential that the rules of procedure designed to ensure justice should be scrupulously followed and the Court should be jealous in seeing that there is no breach of them. In pursuance of the findings, the impugned orders were set aside and a reference for opinion by the expert was allowed.

8. In Kalyani Baskar v. M.S Sampoornam . 2007 1 SCC Crl. 577, the scope of the powers of the Magistrate u/Sec. 243 Cr.P.C was examined. In the said case, acomplaint was filed against Mrs. Kalyani Baskar and her husband for an offence u/Sec. 138 of the Act alleging that Mrs. Kalyani Baskar and her husband jointly signed and issued the cheque for discharging their liability but the said cheque got dishonoured due to “Insufficient funds” in the account. Since a complaint was filed, the accused appeared before the Magistrate and filed an application u/Sec. 245 Cr.P.C raising inter alia preliminary objections that the accused had not signed the cheque nor issued it to the complainant and the cheque in question was drawn from the individual account of the accused and thereafter as alleged by the complainant, the appellant and her husband could not have jointly signed and issued her the cheque and the signature on the cheque may be sent for an expert opinion to ascertain the bonafides of the same and even otherwise neither the drawer of the cheque nor her husband owe any debt to the complainant. The Magistrate dismissed the application on the ground that the genuineness of the signature could be questioned only at the time of the trial of the complainant. During the trial, the accused preferred an application u/Sec. 243 Cr.P.C praying the Magistrate to send the cheque in question for expert opinion to ascertain the correctness and genuineness of the accused signature appearing thereon. The Magistrate dismissed the said application on the ground that it was not mandatory that every disputed document or signature must be sent to an expert opinion. The challenge made to the said order was rejected by the High Court. It is in that context, the Apex Court has held as follows—

12. 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 hand writing 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. 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 hand writing 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.

The facts in the present case are not materially different from those which were considered by the Apex Court in the decision supra. The ratio of law squarely applies to the present case.

9.In the case of H.M Satish (supra), the case of the complainant was that, the accused had approached him and borrowed certain sum, issued a cheque which when presented was dishonoured and returned with an endorsement “Funds Insufficient” and thereafter a notice was issued to which a reply was sent stating that two cheque leaves had been lost and the complainant has mis-used the same. A complaint having been filed, the complainant has got himself examined as P.W 1 and the documents were marked. After examination of the accused u/Sec. 313 Cr.P.C, the accused filed an application u/Sec. 45 of the Evidence Act for referring the cheque in question for opinion of a hand writing expert. Noticing the answer given to question No. 5 of the statement recorded u/Sec. 313 Cr.P.C stating that he and complainant were partners in timber business and on account of the rift between them, the accused has made use of blank cheque and that he has no defence evidence, it was held that, in the case of denial of signature of drawer of the cheque, the best witness could be the concerned Bank Manager and not a hand writing expert. Since the Magistrate had allowed the application solely on the ground that the accused would be put to greater hardship if the application were to be rejected, it was held that, the Magistrate has not appreciated the facts on record while allowing the application and in that view of the matter, the impugned order was set aside. The said case appears to have been decided on its own facts, which is apparent, in that, the Learned Judge has taken into consideration the answers given to question No. 5 of the statement recorded u/Sec. 313 Cr.P.C and the voluntary statement of the accused with regard to the rift between himself and the complainant. Hence, the said decision is of no assistance to the respondent/complainant to oppose the prayer of the accused for referring of the cheque and the bond, for scientific examination.

10. As already noticed, the reason which has weighed with the Magistrate to dismiss the application is that there is specific admission with regard to the signature on the cheque. The Learned Magistrate did not consider the specific case of the accused that, the contents of the cheque and the bond, are not in his hand and the same have been entered by mis-using the cheque and the bond and it is in that context, the prayer was made for sending of the cheque an expert's opinion. The view of the Trial Judge was mechanically upheld by the Revision Court, without noticing the case of the revision petitioner. Since the Courts below have failed to consider the case of the accused to the aforesaid effect, they have acted with material irregularity, which has resulted in illegal orders being passed, requiring interference.

11. P.W 1 when cross-examined on 14/03/2008 has admitted that the amount involved in the case viz., Rs. 7,20,000/- was received by the accused on two occasions. According to him Rs. 4,00,000/- was paid on the first occasion and subsequently Rs. 3,20,000/- was paid, on which date, for the total amount, the promissory note was executed. He has stated that when the money was paid on the first occasion RW.2 was present. RW.2 has deposed that the accused had approached the complainant with a request to grant financial aid by way of hand loan amount of Rs. 7,20,000/-. Since it could not be arranged by the complainant in lumpsum, the complainant paid the accused an amount of Rs. 4,00,000/- on 29/04/2006 and after 15 days i.e, 15/05/2006, complainant paid Rs. 3,20,000/- to the accused as hand loan. According to him, the promissory note was executed in favour of the complainant on 15/05/2006 and during the last week of March 2008, he heard from the complainant that the accused issued cheque for discharge of the hand loan amount of Rs. 7,20,000/- and the same has been dishonoured in respect of which he has filed the case. P.W.2 during cross-examination, has admitted that, he is not personally aware of the accused having issued the cheque to the complainant and that he is also not aware of the cheque and the bond having been received as a security. However, it was suggested to P. W.2 that the accused is due to the complainant only Rs. 3,50,000/- towards which, the cheque was issued, which the complainant has made use of by writing on the cheque Rs. 7,20,000/- and has filed the false case. Nodoubt, the suggestion has been denied by P.W.2, P.W.3 is an attestor to Ex.P-7, the promissory note. P.W.3 has admitted that, there is difference in the ink with reference to the contents of the document and the name appearing as ‘Hadimani’ and that they are in different pen.

12. Keeping in view the line of cross-examination of PW's by an interim order, the petitioner was directed to deposit Rs. 3,50,000/-. The petitioner has deposited a said sum in this Court. The Registry is hereby directed to invest the said amount in any Nationalised Bank, for a period of six months. In case the respondent succeeds, the invested amount along with accrued interest shall be paid to the complainant. If the complaint were to be dismissed, the invested amount along with interest earned thereon, be refunded to accused.

13. Keeping in view the prima facie facts and record, it has to be held that, both the Trial Court and Revision Court, by dismissing the application, have acted illegally. When the case of the accused is that, his cheque has been mis-used, though the presumption u/Sec. 118(a) and 139 of the Act can be raised, still an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. Denying of the opportunity, is illegal. Considering the facts and circumstances of the case, in my opinion, it is necessary to have an expert opinion on the following question.

“Whether the writings appearing in the cheque Ex.P-1 and the promissory note Ex.P-7 have been written on the same day and time, when the cheque and the promissory note was signed as “I.M Hadimani’ r in other words, whether the age of the writing in Ex.P-1 and 7 is the same as that of the signature ‘I.M Hadimani’ appearing on Ex.P-1 and 4?”

For the foregoing discussion, I pass the following;

i) Petition is allowed.

ii) The impugned orders are hereby set aside.

iii) The application filed by the accused in the Trial Court, to refer Exs.P-1 and P-7 to a Hand Writing Expert is allowed and the Trial Judge is directed to send Exs.P-1 and 7 to Smt. C.V Jayadevi, Hand Writing Expert, to submit report with regard to the point formulated supra. The cost of the expert, for the time being is tentatively fixed at Rs. 10,000/-, which amount shall be deposited by the accused before the Trial Court within a period of 2 weeks from the date of receipt of a copy of this order.

In view of the disposd of the main matter, the Misc. Crl. 15998/2009 for stay does not survive for consideration.