Gauhati High Court
Safiqul Islam Laskar vs Joy Kumar Saha on 13 November, 2024
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/4
GAHC010220672024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1297/2024
SAFIQUL ISLAM LASKAR
S/O LATE AZIZUR RAHMAN LASKAR
R/OVILL- GOBINDAPUR, PART-III,
P.S. SILCHAR
P.O. EAST GOBINDAPUR
DIST. CACHAR, ASSAM
PIN-788101
VERSUS
JOY KUMAR SAHA
S/O LATE ANIL KUMAR SAHA
R/O N N DUTTA ROAD,
SILCHAR TOWN,
P.O. AND P.S. SILCHAR,
DIST. CACHAR, ASSAM
PIN-788001
Advocate for the Petitioner : MR. M H RAJBARBHUIYAN, MRS R CHETRI
Advocate for the Respondent : ,
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:: BEFORE ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
O R D E R
13.11.2024
Heard the learned counsel Mr. M.H. Rajbarbhuiyan appearing for the petitioner.
2. This is an application under Section 528 of the BNSS, 2023 challenging the
judgment dated 10.09.2024 passed by the learned Addl. Sessions Judge (FTC),
Cachar, Silchar in Crl. Revision No.80/2021 affirming the order dated 30.10.2021
passed by the learned Chief Judicial Magistrate, Cachar, Silchar in N.I. Case
No.192/2015.
3. The complainant is a money lender by profession. He alleged that the present
petitioner in order to repay money borrowed from him issued a cheque and on
presentation, the said cheque was dishonoured by the Bank.
4. The petitioner's case is that on 08.10.2013 while he was returning from the
Bank, he lost his SBI Pass Book along with cheque book and therefore he informed
police immediately and Silchar P.S. G.D. Entry No.303 dated 08.10.2013 was
registered.
5. The petitioner claimed that he never issued any cheque to the complainant and
for that matter, he prayed before the trial court to send the cheque to a handwriting
expert to examine his signature.
6. I have gone through the cross-examination portion of the evidence of the
complainant.
7. Mr. Rajbarbhuiyan has relied upon a decision of the Hon'ble Supreme Court that
was delivered in Kalyani Baskar (Mrs.) -vs- M.S. Sampoornam (Mrs.) , reported in
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(2007) 2 SCC 258. Paragraph 12 of the said judgment is quoted 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. 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 CrPC 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) CrPC 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 handwriting 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."
8. I have considered the submissions made by the learned counsel Mr.
Rajbarbhuiyan.
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9. This Court is of the opinion that the reasons for which the prayer of the present
petitioner was rejected by the learned trial court as well as by the learned revisional
court, are not based on any satisfactory reason. If the said cheque is sent to a
handwriting expert for examination of the signature of the petitioner, no prejudice
would be caused to the complainant. The trial court should have allowed the prayer of
the present petitioner. The learned revisional court also erroneously agreed with the
decision of the trial court in spite of several decisions placed before him by the
petitioner.
10. For the aforesaid reasons, the present criminal petition is allowed. The impugned
judgment dated 10.09.2024 passed by the learned Addl. Sessions Judge (FTC),
Cachar, Silchar in Crl. Revision No.80/2021 affirming the order dated 30.10.2021
passed by the learned Chief Judicial Magistrate, Cachar, Silchar in N.I. Case
No.192/2015 is set aside.
11. The learned trial court is directed to send the disputed cheque to a handwriting
expert for examination of the signature of the present petitioner to ascertain its
authenticity. After receiving the Report, the trial court shall proceed to dispose of the
case in accordance with the procedure as laid down by law.
12. With the aforesaid direction, the present criminal petition is disposed of.
JUDGE
Comparing Assistant
