Orissa High Court

Khetra Mohan Nayak vs Jitendra Kumar Das ....... Opp. Party on 10 April, 2025

          THE HIGH COURT OF ORISSA AT CUTTACK

                       CRLMC No.3290 of 2016

 (In the matter of an application under Section 482 of the Code of Criminal
Procedure, 1973)



Khetra Mohan Nayak                        .......        Petitioner

                                  -Versus-

Jitendra Kumar Das                       .......             Opp. Party


      For the Petitioner : Mr. Jitendra Kumar Mishra, Advocate

      For the Opp. Party : Ms. Bini Mishra, Advocate

   CORAM:

    THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 02.04.2025       ::     Date of Judgment: 10.04.2025

S.S. Mishra, J. The petitioner is aggrieved by the order dated

12.07.2016 passed by the learned J.M.F.C., Soro in 1.C.C. Case No.93 of

2015, whereby the learned trial Court has rejected the application of the

petitioner seeking to send the subject cheque to obtain handwriting

expert opinion.
 2.    The present petition is arising out of a Complaint Case U/s. 138 of

the N.I. Act initiated by O.P. No.1 against petitioner. The instant petition

has been filed on 13.10.2016. On 23.02.2017, this Court while issuing

notice to the opposite party stayed the further proceeding in 1.C.C. Case

No.93 of 2015 pending in the Court of the learned J.M.F.C., Soro.

3.    The petitioner's prime ground for seeking to refer the cheque to

the handwriting expert is that the complainant/opposite party in his

examination-in-chief while answering to one of the questions of the

petitioner has categorically stated that he has no objection if the report

from handwriting expert is sought for by the petitioner/accused. Relevant

would be to       reproduce that part of the           testimony of the

complainant/opposite party which reads as under:-

           "It is not a fact that I have accepted the cheque as
           mortgage. It is not a fact that I have advanced his some
           money by taking the cheque as mortgage. If the said
           cheque is sent to handwriting expert, I have no
           objection."

      Relying     upon     the   aforementioned      statement     of    the

complainant/opposite party, the accused/petitioner has prayed before the

learned trial Court to send the cheque to the handwriting expert, which


                                                               Page 2 of 11
 has been turned down by the impugned order dated 12.07.2016. Hence

this petition.

4.       Heard Mr. Jitendra Kumar Mishra, learned counsel for the

petitioner and Ms. Bini Mishra, learned counsel for the opposite party.

5.       The case of the petitioner is that the petitioner had some business

dealing with the opposite party. He has given the blank cheque to the

opposite party on security/mortgage. The said cheque has been misused

by the complainant by filling up the cheque and by presenting the cheque

with the banker of the petitioner, which eventually got dishonoured. On

the other hand, the case of the complainant is that the accused/petitioner

had purchased some building materials from his shop towards the

discharge of liability and the outstanding cheque amounting to

Rs.2,70,000/- was issued to him. The cheque has been returned

dishonoured on presentation. Therefore, the opposite party had issued

legal notice on 02.03.2015 to the petitioner. However, the petitioner even

after receiving the notice did not reply, therefore, the complaint case was

filed.




                                                               Page 3 of 11
 6.    Mr. Mishra, learned counsel for the petitioner contended that since

the complainant has virtually given consent for sending the cheque to

handwriting expert, therefore, there is no occasion for the learned Trial

Court to reject the prayer made by him. In order to substantiate his case,

he has relied upon the judgment of the Hon'ble Supreme Court in the

case of Kalyani Baskar vrs. M.S. Sampoornam reported in (2007) 2

SCC 258. Relevant would be to reproduce paragraph-12 of the said

judgment, which reads thus:-

           "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."

7. Mr. Mishra, learned counsel for the petitioner has also relied upon

the judgment of this Court in the case of M/s. Survika Distributors Pvt.

Ltd. & another vrs. M/s. S.R. Retail Zone Pvt. Ltd., reported in (2018)

70 OCR-51. The relevant part of the said judgment reads as under:-

"Considering the submissions made by the learned counsel for the petitioners, one thing is clear that the accused persons are not disputing that the signatures which are appearing in the cheques Exts.3, 4 and 5 to be that of accused Dibyendu Pattnaik but they are disputing that the other entries in the cheques like date and amount etc. are not that of either accused Dibyendu Pattnaik or of

any other accused and those were filled up by the complainant who is stated to be in possession of blank signed cheques or by somebody at the instance of the complainant.

In view of such specific stand taken by the accused persons during trial, I am of the humble view that in the interest of justice, it is necessary that there should have been a direction for examination of the other entries appearing in the cheques Exts.3, 4 and 5 apart from the admitted signatures with the admitted handwritings of the accused persons as well as the complainant in order to ascertain the truth. After obtaining the handwriting expert opinion, the learned Magistrate could have assessed the oral evidence as well as documentary evidence coupled with handwriting expert's opinion in order to find out the truth. Whether the case of the complainant that he was handed over signed cheques Exts.3, 4 and 5 in a completed form is correct or the plea taken by the accused persons that those were blank signed cheques given to the complainant on good faith which have been misutilized by the complainant is correct could have been judged thereafter. Law is well settled that the report of handwriting expert is not the conclusive proof of evidence and it is after all opinion evidence and it should be supported by reasons and the Court has to evaluate the same like any other evidence. It is for the Court to judge whether the opinion has been correctly reached on the data available or not. By not entertaining the prayer of the accused persons in sending the Exts.3 to 5, the learned Magistrate has prevented the accused persons in proving their defence plea in a better manner."

8. By relying upon the aforementioned judgments, Mr. Mishra,

learned counsel for the petitioner submitted that the

complainant/opposite party has misused the cheque being issued towards

"security/mortgage". Even in the cases where presumption raised either

under Section 118(a) or 139 of the N.I. Act, opportunity should have

been afforded to the accused/petitioner for adducing evidence in rebuttal

thereof. The law places a burden on the accused, therefore, he should

have been given an opportunity to discharge the burden. Mr. Mishra,

learned counsel also submitted that in the fact scenario of the present

case, there was no escape under law for the learned trial Court to allow

the application moved by the petitioner. However, surprisingly the

application is turned down by ignoring all the judgments cited by him

before the learned trial Court.

9. On the contrary, Ms. Mishra, learned counsel for the opposite

party has opposed the prayer of the petitioner. She has relied upon

Paragraph 17 of the judgment of the Hon'ble Supreme Court in the case

of Oriental Bank of Commerce vrs. Prabodh Kumar Tewari passed in

Criminal Appeal No1260 of 2022., which reads as under:-

"17. For such a determination, the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand- writing expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was

issued towards payment of a debt or in discharge of a liability."

10. Ms. Mishra, learned counsel for the opposite party contended that

the learned trial Court has rightly rejected the prayer made by the

petitioner as the law occupied the field has been authoritatively

enunciated by the Hon'ble Supreme Court in Oriental Bank (supra). She

also contended that once the accused/petitioner has admitted his

signature in the cheque, there is no question of sending it to the

handwriting expert.

11. I have meticulously taken into consideration the entire material

placed before me and also gone through the judgments cited by both the

parties in extenso. While dealing with the issue in lis, it would be apt to

rely upon the provision of Section 73 of the Indian Evidence Act, 1872,

which reads as under:-

"73. Comparison of signature, writing or seal with others admitted or proved.

In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature,

writing or seal has not been produced or proved for any other purpose.

The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person."

12. It is always not necessary that in every such case, the opinion of

the expert is necessitated for determining the issue. It is open for the

learned trial court to resort to the procedure contemplated under the

Indian Evidence Act to evaluate the evidence relating to the versatility of

issuance of the cheque. The Hon'ble Supreme Court in Criminal Appeal

No.432 of 2022 in the case of Manorama Naik vrs. The State of Odisha

& Anr. has precisely noticed the same aspect and observed as under:-

"It is pointed out that the opinion of the handwriting expert was filed for the first time before the High Court and was not available with the Trial Court at the time when cognizance was taken. That apart, the signatures and handwriting of the person can also be proved under Sections 45, 47 and 73 of the Indian Evidence Act, 1872. Therefore, opinion of the handwriting expert is not the only way or mode of providing the signature and handwriting of a person."

13. Even the High Court of Kerala in one of the judgment in OP

(CRL.) No.533 of 2021 in the case of Tomy T.J., vrs. State of Kerala

and another has held as under:-

"14. In Murari Lal v. State of M.P. [(1980) 1 SCC 704 :

1980 SCC (Cri) 330] the Apex Court indicated the circumstances in which the Court may itself compare disputed and admitted writings thus:-

"12. The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and two voices of science are heard. There may be cases where neither side calls an expert, being ill-able to afford him. In all such cases, it becomes the plain duty of the court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the court. Where there is none, the court will have to seek guidance from some authoritative textbook and the court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence.""

14. Taking into consideration the entire conspectus of the facts and

law relating to the issue in subject, although I am not inclined to interfere

with the impugned order dated 12.07.2016 passed by the learned

J.M.F.C., Soro in 1.C.C. Case No.93 of 2015 but it is open to the

petitioner to make a request for comparison of the admitted or proved

writings of the petitioner with the disputed writings appearing in the

cheque. The learned trial Court shall invoke Section 73 of the Indian

Evidence Act and draw a comparison to arrive at a conclusion at the time

of disposal of the complaint case.

15. With this observation, the CRLMC is partly allowed.

(S.S. Mishra) Judge

The High Court of Orissa, Cuttack Dated the 10th of April, 2025/ Swarna